Phillips v. Randle et al

Filing 25

MINUTE entry before Honorable James B. Zagel:The petition for a writ of habeas corpus is denied. A certificate of appealability as to all claims is denied. Mailed notice(drw, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Judge Zagel

CASE NUMBER

10 C 3434

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

March 6, 2012

Phillips v. Ryker

DOCKET ENTRY TEXT:

The petition for a writ of habeas corpus is denied. A certificate of appealability as to all claims is denied.

STATEMENT
Introduction
Petitioner Jesse Phillips is incarcerated at the Lawrence Correctional Center in Sumner, Illinois, where he is
serving a 25-year sentence for unlawful delivery of a controlled substance. At Petitioner’s December 8, 2004,
sentencing hearing, the trial court judge made some questionable comments suggesting that the 25-year
sentence was based in part on Petitioner’s decision to exercise his right to trial, and also the fact that
Petitioner raised his hand several times during the sentencing hearing in an attempt to speak, which the trial
court judge apparently found disruptive.
Petitioner appealed his sentence, arguing that the trial judge abused her discretion in punishing him for
exercising his trial right and raising his hand during the sentencing hearing. The Third District Appellate
Court of Illinois agreed with Petitioner, vacated his sentence, and remanded for the trial court to conduct a
new sentencing free of improper considerations. (The appellate court also ordered the trial court to hold a
hearing on Petitioner’s ineffective assistance of counsel claim. That issue is not before this court).
On September 13, 2007, the trial court conducted a new sentencing hearing in which the trial court judge
denied that Petitioner’s choice to go to trial or his attempts to speak at his sentencing hearing weighed into
her initial sentencing considerations (under Illinois law, Petitioner was eligible for a sentence of up to 30
years.). The 25-year sentence was reimposed and Petitioner again appealed to the Third District Appellate
Court on the grounds that the trial court essentially ignored the appellate court’s previous mandate. On May
9, 2009, the appellate court upheld the 25-year sentence, concluding that the trial court judge had
satisfactorily clarified her earlier remarks and did not abuse her discretion in reimposing the 25-year sentence.
Petitioner timely filed a Petition for Leave to Appeal to the Supreme Court of Illinois, which was denied on
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STATEMENT
September 30, 2009. (Petitioner then unsuccessfully sought postconviction relief on an ineffective assistance
of counsel claim).
Petitioner filed the instant habeas petition on June 1, 2010. He lists three grounds on which he believes he is
entitled to federal habeas relief, but they really amount to one claim–that the state appellate court, in its May
9, 2009 opinion, did not adequately address his claim that, in reimposing the 25-year sentence, the trial judge
was still punishing him for raising his hand several times at the original December 8, 2004, sentencing
hearing.
Analysis
Petitioner has failed to state a claim upon which federal habeas relief can be granted because he does not
specify how the appellate court’s failure to address his hand-raising argument in any way implicates the
Constitution or laws of the United States. To the extent that he is raising an Eighth Amendment claim, it is
unexhausted (and most likely procedurally defaulted) because it was not presented through “one complete
round of the State’s established appellate review procedures.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). While his PLA raises an Eighth Amendment issue, he did not raise any constitutional claims in his
direct appeal to the Third District following his resentencing. Nevertheless, in the interest of finality I will
reach the merits of his claim. 28 U.S.C. § 2254(b)(2). The state appellate court’s decision upholding his 25year to life sentence was not contrary to, or an unreasonable application of, clearly established federal law–the
relevant law here being the Supreme Court’s “gross disproportionality” principle. Defendant became eligible
for Class X sentencing because of his criminal history, and the Supreme Court has upheld 25-year to life
sentences for recidivists convicted of less serious offenses than selling drugs. See Lockyer v. Andrade, 538
U.S. 63 (2003); Ewing v. California, 538 U.S. 11 (2003). If, on the other hand, Petitioner means to raise a
Fourteenth Amendment due process argument based on the trial judge’s consideration of improper factors
this is also unexhausted. But here too, the claim fails on the merits. In upholding the reimposition of the 25year sentence, the state appellate court made a judicial determination that the trial judge did not allow
improper considerations to factor into her decision. I am required to presume this determination is correct
unless the Petitioner can rebut it by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). He has not done
so.
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. Because I do not believe that
“jurists of reason” could find my ruling that Petitioner did not properly preserve his claims on direct appeal to
be “debatable,” I am denying a certificate of appealability as to all claims. Slack v. McDaniel, 529 U.S. 473,
484 (2000).

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