Henderson v. Korte
Filing
17
OPINION: Petitioner's Amended Petition for Habeas Relief (d/e 2 ) is a second or successive petition that the court of appeals has not granted him leave to file. Therefore, the Court DISMISSES the Amended Petition (d/e 2 ) without prejudice for lack of jurisdiction. The Court declines to issue a ertificate of appealability. THIS CASE IS CLOSED. Entered by Judge Sue E. Myerscough on 1/5/2016. (ME, ilcd)
E-FILED
Tuesday, 05 January, 2016 03:40:30 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ELLIS HENDERSON,
Petitioner,
v.
JEFF KORTE, Warden,
Western Illinois Correctional
Center,
Respondent.
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No. 15-3243
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Petitioner Ellis Henderson’s
Amended Petition for Habeas Relief (d/e 2) brought pursuant to 28
U.S.C. § 2254 and § 2241. Because the Amended Petition is a
successive § 2254 petition and Petitioner has not obtained
permission from the Seventh Circuit to file a successive petition, the
Amended Petition is DISMISSED for lack of jurisdiction.
I. BACKGROUND
Petitioner was convicted of murder and, in June 1994,
sentenced to 60 years of imprisonment in Cook County Case No.
90 CR 3776. The state court’s judgment order directed the Illinois
Department of Corrections (IDOC) to credit Petitioner’s sentence
“with time served from 1-10-90.” See Order of Sentence and
Commitment to Illinois Department of Corrections, attached to the
Amended Petition (d/e 2). In February 1997, IDOC calculated
Petitioner’s projected out date (based on credit for time served pretrial and day-for-day credit) as January 10, 2020. See Sentence
Calculation Worksheet, attached to Amended Petition (d/e 2).
In May 2012, the state court entered an Order of Commitment
and Sentence to Illinois Department of Corrections ordering 1645
days credit for time actually served in custody. See Order
attached to Amended Petition (d/e 2). In August 2012, IDOC
calculated Petitioner’s projected out date as December 14, 2019.
See Single or Concurrent Determinate Sentences Under 1978 Law
and Jail Credit, attached to Amended Petition (d/e 2); see also May
22, 2012 IDOC letter (indicating that, although it appeared that
the inmate was receiving credit for 1 month and 25 days prior to
the offense occurring, IDOC would apply the credit).
In August 2015, Petitioner filed a Petition for Habeas Corpus
Relief pursuant to 28 U.S.C. § 2254 and § 2241. See d/e 1. In
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September 2015, he filed an Amended Petition (d/e 2). Petitioner
alleges that he is being held beyond his release date, which
Petitioner believes was June 4, 2015. Petitioner bases this on his
calculation of credit for time served in pre-trial custody and goodconduct credit.
The Court ordered Respondent, Jeff Korte, to respond to the
Amended Petition. Respondent filed an Answer (d/e 11)
requesting that the Amended Petition be denied because Petitioner
is not entitled to immediate release. Respondent also indicated
that Petitioner had raised a similar claim in a habeas petition
before the Northern District of Illinois that was denied on the
merits on July 7, 2015. See Answer at 2 n.1, citing Henderson v.
Alvarez, No. 15 C 4164 (N.D. Ill. July 7, 2015) (finding that
Petitioner received his proper sentencing credit).
On November 17, 2015, this Court directed Respondent to
address whether Petitioner’s Amended Petition was an
unauthorized successive petition in light of the filing in the
Northern District. On November 30, 2015, Respondent filed a
Response to Court’s November 17, 2015 Order (d/e 16) asserting
that the Petition was an unauthorized successive petition that
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must be dismissed. The Court granted Petitioner until December
18, 2015, to file a response. Petitioner has not done so.
II. ANALYSIS
This Court has reviewed the petition filed by Petitioner in the
Northern District and determined that Petitioner is bringing the
same claim in the Amended Petition filed in this Court.1 See
Petition attached to Response (d/e 16). In both petitions, Petitioner
is challenging IDOC’s calculation of Petitioner’s pre-trial and
sentence credit related to Petitioner’s 1994 murder conviction.
A prisoner cannot file a successive § 2254 petition without
receiving authorization from the court of appeals. See 28 U.S.C. §
2254(b)(3)(A) (“Before a second or successive application permitted
by this section is filed in the district court, the applicant shall move
in the appropriate court of appeals for an order authorizing the
district court to consider the application”); see also Rule 11(a) of the
Rules Governing § 2254 Proceedings. Because Petitioner has not
received authorization from the Seventh Circuit, the Amended
Petition must be dismissed. See Burton v. Stewart, 549 U.S. 147,
Although Petitioner purports to also bring his Petition pursuant to 28 U.S.C.
§ 2241, § 2254 is “the exclusive vehicle for prisoners in custody pursuant to a
state court judgment who wish to challenge anything affecting that custody[.]”
Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000).
1
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153 (2007) (per curiam) (holding that because the petitioner did not
receive authorization from the court of appeals to file his successive
§ 2254 petition, “the District Court was without jurisdiction to
entertain it”).
III. CERTIFICATE OF APPEALABILITY
If Petitioner seeks to appeal this decision, he must first obtain
a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)
(providing that an appeal may not be taken to the court of appeals
from “the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court” unless a circuit justice or judge issues a certificate of
appealability). When, as here, a habeas petition is denied on
procedural grounds, a certificate of appealability may issue only if
the petitioner shows that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court finds that jurists of reason would not find it
debatable whether Petitioner’s Petition states a valid claim of the
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denial of a constitutional right and would not find it debatable
whether the district court was correct in its procedural ruling.
Therefore, the Court denies a certificate of appealability.
IV. CONCLUSION
Petitioner’s Amended Petition for Habeas Relief (d/e 2) is a
second or successive petition that the court of appeals has not
granted him leave to file. Therefore, the Court DISMISSES the
Amended Petition (d/e 2) without prejudice for lack of jurisdiction.
The Court declines to issue a certificate of appealability. THIS
CASE IS CLOSED.
ENTER: January 5, 2016
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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