Simmons v. Nicholson
Filing
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OPINION entered by Judge Sue E. Myerscough on 12/7/2012. The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, d/e 1 is DISMISSED WITHOUT PREJUDICE because the claims made therein have not been exhausted in state proceedings. The Motion for Leave to Proceed In Forma Pauperis is granted. The $ 5.00 filing fee is waived. (MAS, ilcd)
E-FILED
Monday, 10 December, 2012 12:01:00 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
GEORGE ELLIS SIMMONS,
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Petitioner,
v.
WALTER NICHOLSON, Warden,
Illinois River Correctional Center,)
No. 12-3306
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Respondent.
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Pro Se Petitioner George Simmons, an inmate at Illinois River
Correctional Center, has filed a Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody (Petition) (d/e 1).
According to the Petition, Simmons was convicted of Possession of a
Controlled Substance With Intent to Deliver. Pending before the Court
are Simmons’s Motion for Leave to Proceed In Forma Pauperis (d/e 2)
and an initial review of the Petition under Rule 4 of the Rules Governing
Section 2254 in the United States District Courts.
Simmons has the sum of $0.09 in his account at Illinois River
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Correctional Center. Therefore, the Motion for Leave to Proceed In
Forma Pauperis is granted. The five dollar filing fee is waived.
Rule 4 requires the Court to promptly examine the § 2254 petition
and any attached exhibits. “If it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petitioner and direct the clerk
to notify the petitioner.” Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts.
According to the Petition, Simmons was convicted of Possession of
a Controlled Substance with Intent to Deliver on September 19, 2006, in
the Winnebago County Circuit Court in Rockford, Illinois. Simmons
received a sentence of 15 years’ imprisonment and 3 years’ mandatory
supervised release (MSR). Simmons filed a direct appeal in which he
argued that he “was convicted on the weight of the substance and was
not found guilty beyond a reasonable doubt.” The Illinois Appellate
Court affirmed the conviction. Simmons did not appeal the appellate
court’s decision to the Illinois Supreme Court.
Simmons did, however, file a motion for leave to file a writ of
habeas corpus as an original action in the Illinois Supreme Court under
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Illinois Supreme Court Rule 381. The grounds raised in his motion
brought pursuant to Supreme Court Rule 381 were as follows: “That the
trial court, the Illinois Department of Corrections and the Illinois
Prisoner Review Board is allowed to misinterpret and misapply
sentencing guidelines statutes to the disadvantage of Petitioner causing
him to serve more time in prison and on Mandatory Supervised Release
than what is required under the day for day laws of Illinois.” Simmons
attached to the instant Petition the Illinois Supreme Court’s September
21, 2012 Order which states “[t]he motion by petitioner for leave to file
a petition for writ of habeas corpus is denied.” (Emphasis in original.)
On November 15, 2012, Simmons filed the instant Petition that
contains allegations similar to those made in his motion to file a writ of
habeas corpus in the Illinois Supreme Court. Specifically, the Petition
states that Simmons “is being twice put in jeopardy for the same offense
by being forced to serve more time in prison and on mandatory
supervised release (MSR) than what is required by Illinois law because of
the misinterpretation and misapplication of the day for day statute.”
The Petition reflects that the claims Simmons raises in the present
federal habeas corpus petition were not raised in his direct appeal.
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Instead, the claims Simmons presents in the Petition were first raised in
his motion under Illinois Supreme Court Rule 381 for leave to file a
habeas corpus petition in the Illinois Supreme Court. “Federal courts will
not address the merits of a habeas corpus claim unless the petitioner
presented it in ‘one complete round of the State's established appellate
review process.’” Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir. 2003),
quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L. Ed.2d 1 (1999). While filing a motion for leave to file a writ of habeas
corpus directly in the Illinois Supreme Court is a recognized “bypass
procedure, the Supreme Court’s denial of leave to file the writ of habeas
corpus ‘is not an adjudication on the merits and does not preclude the
plaintiff from prosecuting an action seeking the same relief in a circuit
court’ and through the standard appellate process.” Dupree v. Jones, No.
07-1149, 2007 WL 2908948, at *2 (C.D. Ill. Oct. 3, 2007) (quotation
omitted), aff’d by unpublished order, 281 F. App’x 559, 560 (7th Cir.
2008) (stating “a prisoner who does nothing more after being turned
away by the supreme court has not pursued a full round of state-court
review, and thus, has not exhausted”); see also Wahiid v. McGann, No.
08 C 0637, 2009 WL 1675952, at *2 (N.D. Ill. June 11, 2009) (the
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denial of a motion for leave to file a petition for habeas corpus in the
Illinois Supreme Court “did not represent a ruling on the merits and did
not preclude [the petitioner] from subsequently raising these issues in a
petition filed in a state trial court”); United States ex rel. Malloy v. Ott,
No. 08 cv 6109, 2009 WL 2605287, at *2 (N.D. Ill. Aug. 25, 2009)
(citing Wahiid for the same proposition).
THEREFORE, the Petition [1] is DISMISSED WITHOUT
PREJUDICE because the claims made therein have not been exhausted in
state proceedings.
IT IS SO ORDERED.
ENTER: December 7, 2012.
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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