Carroll v. Hathaway et al

Filing 30

MEMORANDUM Opinion and Order Entered by the Honorable Harry D. Leinenweber on 1/19/2012:(gcy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex
rel. CHARLES CARROLL,
Case No. 10 C 3862
Petitioner,
Hon. Harry D. Leinenweber

v.
JODY HATHAWAY, Warden, Shawnee
Correctional Center,
Respondent.

MEMORANDUM OPINION AND ORDER
Before this court is Charles Carroll’s Petition for a Writ of
Habeas Corpus. For the following reasons, this Court issues a Writ
striking

the

period

of

supervised

release

from

Petitioner’s

sentence, but declines to issue a Writ on all other grounds.
I.

BACKGROUND

In December 1999, Petitioner Charles Carroll (hereinafter, the
“Petitioner”) was convicted after a bench trial of six counts of
aggravated

criminal

stepdaughter.

sexual

assault

against

his

15-year-old

The judge found that he entered her bedroom with a

knife, held the knife to her throat and threatened to molest her.
The victim cut her finger trying to push the knife away.

Carroll

then commanded her to stab him with the knife, which she did.

He

then took her upstairs, cut off her clothing with a different
knife, and committed the three acts of sexual penetration for which

he was convicted.

The victim testified at trial, as did several

witnesses to whom she immediately reported the rape.

Carroll

disputes none of the facts except the rape.
At trial, the court admitted evidence that sperm was found
inside the victim, although it was not scientifically linked to
Petitioner.

The defense was not permitted to inquire as to

alternate sources for the sperm evidence.

After trial, however,

the court granted a defense motion to strike the evidence.

Even

so, the judge reaffirmed her conclusion that Petitioner was guilty.
The victim testified at sentencing about the attack’s impact
on her life, including her continuing digestive problems.

The

judge credited her statements, pointing out that she had vomited
during

her

testimony

and

that

such

a

violent

reaction

something significant about the impact on the victim.

said

Petitioner

was sentenced to concurrent terms of eight years on Counts I, III,
IV, and V; as well as a concurrent term of 14 years on Count II and
a consecutive term of 14 years on Count VI.

In total, Petitioner

was sentenced to 28 years of imprisonment.
Petitioner appealed to the Illinois Appellate Court on three
grounds.

First, he alleged that admitting the sperm evidence was

error; the Appellate Court agreed but noted that it was harmless at
most because the judge had excluded the evidence post-trial.
Second,

Petitioner

judicial notice.

argued

that

the

judge

had

taken

improper

The defense had asked the judge to take judicial

- 2 -

notice of the relatively little blood in the upstairs bedroom; she
refused, noting that in her experience overweight individuals (like
Carroll had been) sometimes bled less than one might expect.

The

appeals court agreed that this observation was improper, but found
it

harmless

Petitioner.

in

light

Third,

of

the

considerable

Petitioner

argued

that

evidence
the

against

judge

made

contradictory findings at sentencing, which the Appellate Court
flatly rejected in affirming his conviction.

The Illinois Supreme

Court subsequently denied a Petition for Leave to Appeal (the
“PLA”) on June 29, 2001.
On January 25, 2002, Petitioner filed a state post-conviction
petition alleging nine claims including:

ineffectiveness of trial

counsel, ineffectiveness of appellate counsel, judicial wrongdoing,
and a failure to prove that he used a weapon beyond a reasonable
doubt.

He was appointed counsel, who filed an amended petition.

Both petitions were denied on May 7, 2004.
Again with counsel, Petitioner appealed, arguing that certain
witness testimony should not have been barred at trial and that his
prior counsel was ineffective for not challenging three of his
convictions under the one-act, one-crime rule.
King, 66 Ill.2d 551 (1977).)
crime violation,

but

sought

(See People v.

The state conceded the one-act, oneresentencing

sentences should have been consecutive.

because

Petitioner’s

The Appellate Court

affirmed in part and reversed in part on March 29, 2006.

- 3 -

It

vacated

all

of

the

sentences,

resentencing on Counts I – III.

and

remanded

the

case

for

Petitioner filed a PLA to the

Illinois Supreme Court re-arguing his ineffective assistance claims
and claiming, inter alia, that the state was estopped from seeking
consecutive sentences.

The PLA was denied on September 27, 2006.

On remand, Petitioner was sentenced to eight years on Count I,
twelve years on Count II, and six years on Count III, for twentysix (26) total years of consecutive imprisonment. He appealed, but
his appointed counsel filed a motion to withdraw under Anders v.
California, 386 U.S. 738 (1967), citing a lack of meritorious
issues for appeal. Petitioner responded by letter, arguing that he
needed counsel to look into several issues, including that the
Department

of

Corrections

had

added

an

unauthorized

mandatory supervised release (“MSR”) to his sentence.

term

of

He cited no

cases, but sought counsel to help develop those claims.

The

Appellate Court granted the Anders motion and affirmed the sentence
on November 20, 2008.
MSR

argument

with

constitutionality.

Petitioner sought rehearing, developing his
citations

challenging

That petition was denied.

the

sentence’s

He then filed a PLA

on the same claims, which was denied on May 28, 2009.
On June 21, 2010, the Petitioner filed this petition.
II.

LEGAL STANDARD

28 U.S.C. § 2254 limits the ability of District Courts to
grant habeas relief to state prisoners.
- 4 -

Such prisoners cannot

present a claim in federal court until they exhaust their state
court remedies and subject their claims to a complete round of
state appeals.

See Malone v. Walls, 538 F.3d 744, 753 (7th Cir.

2008). If a prisoner exhausts his remedies without subjecting each
claim a complete round of appeals, he has procedurally defaulted
that claim. Id.

To fairly present a claim to the state courts, a

prisoner should provide both the relevant facts and law. Id.
A prisoner may present a defaulted claim if he shows: (a)
adequate cause for the default and prejudice from losing review on
the merits, or (b) that a fundamental miscarriage of justice will
result from the lack of review.
(7th Cir. 2010).

Smith v. McKee, 598 F.3d 374, 382

Cause requires an objective factor (external to

the defense) which prevented a petitioner from presenting the claim
earlier; prejudice means that error “so infected the entire trial
that the resulting conviction violates due process.” Id.
If a state court adjudicated a claim on the merits, habeas is
only available if that decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or was based
upon “an unreasonable determination of the facts in light of the
evidence presented [to that court].” 28 U.S.C. § 2254(d).

If the

judgment clearly rested on state procedural grounds, however, the
claim is not subject to federal collateral review.
598 F.3d 324, 329 (7th Cir. 2010).
- 5 -

Gray v. Hardy,

Rule

2(c)

(“Rule 2(c)”)

of

the

requires

Rules
a

Governing

habeas

petition

Section

2254

Cases

to

the

relief

list

requested, the grounds for that relief, and facts to support each
ground.

A petitioner need not recite every possible supporting

fact, but notice pleading will not suffice.
296 F.3d 630, 633 (7th Cir. 2002).

Lloyd v. Van Natta,

Petitioner argues that the

habeas packet he obtained from the prison law library did not
inform him about Rule 2(c), and that he should not be held to it.
However, the form petition (which he attached as an exhibit)
repeatedly emphasizes that a petitioner must provide supporting
facts.

See, e.g., Pet’r’s Reply Br. Ex. A, at 2 (“The section in

which you state the grounds for relief is clearly the heart of your
petition. You want to be as precise and detailed as possible.”);
Id. at 10 (“Summarize briefly the facts supporting each ground.”)
(emphasis in original).
III.
A.

DISCUSSION
Claim 1

Petitioner argues that the state trial court erred in taking
judicial notice “of facts that are not of common knowledge, by
doing so it relieved the burden of proof from the State.”
Respondent

argues

that

this

claim

should

be

Pet. 3.

dismissed

under

Rule 2(c). The Court agrees that Claim 1 is insufficiently plead.
Even incorporating the underlying facts from Petitioner’s
prior litigation, however, the claim is meritless. As noted above,
- 6 -

the Appellate Court acknowledged that the trial judge erred to the
extent that she considered any relationship between a person’s
weight and their rate of blood loss.

However, that court also

found the error harmless, as there was “no reasonable probability
the trier of fact would have acquitted the defendant had the
evidence been excluded.”

Resp’t Ex. A, at 9-10.

If a state court concludes that an error was harmless, federal
courts may only review that conclusion for a reasonable application
of the Chapman harmless error standard.

Johnson v. Acevedo, 572

F.3d 398, 404 (7th Cir. 2009)(citing Chapman v. Cal., 386 U.S. 18
(1967)).

A reasonable application of Chapman ends the federal

case. Id. Respondent concedes that the state court’s analysis does
not track Chapman; this Court is not so sure.

See Burr v. Pollard,

546 F.3d 828, 831 (7th Cir. 2008).

In any event, the error was

harmless under the federal standard.

See Johnson, 572 F.3d at 404

(if the state court did not follow Chapman, the federal court
applies Brecht v. Abrahamson, 507 U.S. 619 (1993)).

Under Brecht,

the court must determine whether an error “had substantial and
injurious

effect

or

influence

in

determining

verdict.”

the

[judge’s]

Brecht, 507 U.S. 619, 623 (1993).

It seems clear that the improper judicial notice here had no
such influence.

It is unclear how much the judge relied on that

“notice,” given that she only raised it in rejecting Defendant’s
motion.

In any event, as the Appellate Court noted, the trial
- 7 -

judge

specifically

credited

the

victim’s

testimony

and

cited

corroborating evidence, including the clothes that were cut from
her body and her contemporaneous outreach to neighbors, police, and
doctors.

Resp’t Ex. A, at 5.

Furthermore, as that court noted,

Petitioner’s claim that he walked away at the height of the attack
is inherently implausible.

Resp’t Ex. T, at 343.

cannot

improper

conclude

that

the

taking

of

This Court thus
judicial

notice

substantially injured Petitioner and meaningfully influenced the
judge’s finding of guilt.
Petitioner also objects in his reply that the judge allowed
the victim’s physical illness on the stand to improperly influence
her decision. See Pet’r Reply Br. 5.

However, that claim is

procedurally defaulted, in that Petitioner raised the issue in his
first PLA, and again in his pro se post-conviction petition, but
nowhere else – not even in his other pro se briefs.

See Resp’t

Ex. K, Q.
Even if the claim were not defaulted, it lacks merit.

The

trial court only discussed the victim’s illness in the context of
the

victim’s

impact

Petitioner guilty.

statement

at

sentencing,

not

See Resp’t Ex. T, at 399-400, 404.

in

finding

Because the

court only relied on the victim’s illness at sentencing, and
Petitioner was subsequently re-sentenced, he cannot identify any
harm

that

he

suffered

from

this

- 8 -

allegedly

unconstitutional

consideration of the victim’s illness.

Accordingly, Petitioner’s

Claim 1 is denied.
B.

Claim 2

In Claim 2, Petitioner seems to challenge the trial court’s
admission of the sperm evidence. Once again, the Court agrees with
Respondent that the petition lacks sufficient factual allegations
and is subject to dismissal under Rule 2(c).

Even were that not

so, however, Claim 2 is meritless. As noted above, the trial court
struck that evidence in its post-trial ruling, but reaffirmed its
finding of Petitioner’s guilt even without that evidence.
In a bench trial, the judge is presumed to base her findings
only on the competent evidence in the record.
Stanley, 411 F.2d 514, 516 (7th Cir. 1969).

United States v.

Here, a presumption is

not necessary, as the judge specifically concluded that even absent
the sperm evidence the conviction stands.

As the Appellate Court

noted, there is ample supporting evidence in the record for the
conviction, and thus even if the sperm evidence had been relied on
to some degree it was “at worst harmless error.”
4.

Resp’t Ex. A, at

The Appellate Court found “no reasonable probability” that

Petitioner would have been acquitted if the sperm evidence had
never been introduced. Id.

Even if, as discussed above, this is

not a proper Chapman inquiry, this Court does not find that the
evidence had a “substantial and injurious effect or influence in

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determining the [judge’s] verdict.”

Brecht, 507 U.S. at 623.

Accordingly, habeas relief on Claim 2 is denied.
C.
Petitioner

argues

Claim 3

that

the

trial

court

showed

bias

and

prejudice by altering transcripts, ostensibly to conceal the errors
in his initial sentence.

He admits in his reply, however, that

this argument is moot because he has been re-sentenced.
Reply Br. 3.

Pet’r

Accordingly, habeas relief on Claim 3 is denied.
D.

Petitioner

argues

Claim 4

that

his

trial

unconstitutionally ineffective in three ways:

counsel

was

(1) by failing to

investigate and/or call witnesses who might have affected the trial
outcome; (2) for not requesting a mistrial when the victim vomited
during her testimony; and (3) for not objecting “to evidence and
statements that were inadmissible.” Pet. 3-4.
that these

claims

are

procedurally

Respondent contends

defaulted.

The

claim of

ineffective assistance of counsel is but one claim, no matter how
many failings are alleged to support it.
F.3d 883, 894 (7th Cir. 2007).

Stevens v. McBride, 489

However, because a petitioner must

present state courts with both the facts and the law supporting his
claims,

he

can

default

individual

bases

for

an

ineffective

assistance claim. Id.
Petitioner raised ineffective assistance claims against his
trial counsel in both his original and amended post-conviction
- 10 -

petitions.

The reviewing trial court concluded that trial counsel

“certainly did not in any way violate the Strickland standard.”
R. 539.

The claims were not pressed on appeal, see Resp’t Ex. I at

13, 18-20, 25, though the subsequent PLA did allege that various
lawyers were ineffective for failing to spot the one-act, one-crime
problem sooner.

Resp’t Ex. K, at 5-6.

Petitioner appears to concede that the grounds pressed here
are defaulted, but argues that he should be allowed to pursue them
because they were omitted on appeal over his objection.

He then

left them out of his pro se PLA, he claims, because he believed
that the Illinois Supreme Court Rules limited his PLA to issues
raised on appeal.
However, upon reading that PLA, it is clear that he did not
limit his arguments to issues raised on appeal.

He cannot now

selectively invoke the rules to revive his abandoned claims.
(Furthermore, his appellate counsel suggested that Petitioner raise
his Apprendi claim for the first time in a PLA, further undermining
his reliance argument. See Resp’t Ex. F at Ex. B thereto.)

His

explanation lacks credibility and cannot satisfy the cause-andprejudice standard.

The Court will not, therefore, afford him

habeas relief on his defaulted claims of ineffective trial counsel.
E.

Claim 5

Petitioner also raises Sixth Amendment claims against his
counsel on direct appeal, arguing that counsel “failed to raise
- 11 -

issues

that

are

arguments raised.

reversible

error,

or

would

with

Rule 2(c).

to

support

These issues were requested to be included in

the appeal by the petitioner.” Pet. 4.
agrees

help

Respondent

that

these

Once again, this Court

assertions

cannot

satisfy

Even in Petitioner’s prior filings in this record, his

vague objections to appellate counsel’s performance are largely
unsupported by details or facts.

See, e.g., Resp’t Ex. F, at 3-4,

grounds (b)-(d).
Even if the allegations complied with Rule 2(c), however, the
bases for the ineffective assistance claim alleged here have been
defaulted.

As noted above, a petitioner must avoid defaulting not

only his general claim of ineffective assistance, but also the
alleged failings supporting such a claim.

Stevens, 489 F.3d at

894.
Only two bases for Petitioner’s alleged ineffective assistance
claim were adequately presented to the state courts in his postconviction petitions:

that appellate counsel erred by failing to

argue that his trial counsel was ineffective, and that appellate
counsel failed to identify a possible Apprendi issue.
On appeal from the denial of that petition, Petitioner’s
counsel argued that:

the exclusion of certain witness testimony

was reversible error; Petitioner’s six convictions for three acts
of sexual penetration violated the one-act, one-crime rule; and
counsel

at

the

appellate

and

post-conviction

- 12 -

levels

were

ineffective for failing to spot those issues.

The state objected

that the one-act, one-crime issue was defaulted, but confessed
error on its substance.

The Appellate Court concluded that the

claims relating to witness testimony were without merit, but that
three of

Petitioner’s

convictions had

to be

vacated

remaining three remanded for consecutive sentences.

and

the

It therefore

vacated all sentences, remanded for re-sentencing on Counts I III, and declined to resolve Petitioner’s ineffective assistance
claim relating to sentencing.
Petitioner’s subsequent PLA contains some discussion of his
appellate counsel’s failings, but the only clear complaint is that
the attorney should have spotted the issue of Petitioner’s void
sentence. See Resp’t Ex. K, at 5-6.

As noted above, Petitioner’s

argument that he only defaulted his other claims in reliance on the
Illinois Supreme Court rules is insupportable on this record.
Thus, the only ground for an ineffective assistance claim that
Petitioner has even arguably not defaulted is the claim that his
appellate counsel should have spotted his void sentence.
as

the

Illinois

Petitioner

courts

cannot

show

have
any

already

corrected

prejudice

from

However,

the

sentence,

that

failing.

Accordingly, even if this Court did not dismiss this claim for
flagrant violation of Rule 2(c), it would deny habeas relief on the
merits.

- 13 -

F.

Claim 6

Petitioner next objects that the Appellate Court failed to
consider the cumulative effect of the trial court’s errors when it
upheld

his

conviction.

Individually

harmless

errors

may

cumulatively “alter the course of a trial so as to violate” a
petitioner’s due process rights.

Alvarez v. Boyd, 225 F.3d 820,

824 (7th Cir. 2000).

To make out a cumulative error claim, a

petitioner must show:

(1) at least two trial errors, which (2)

considered together with the complete record, so infected the
proceedings

as

to

make

the

trial

fundamentally

unfair.

Id.

Petitioner must show that but for those errors, the trial outcome
probably would have been different.

United States v. Benabe, 436

Fed. App’x 639, 659 (7th Cir. 2011).
The Appellate Court acknowledged two trial errors:

the

improper discussion of a relationship between weight and tendency
to bleed, and the admission of the sperm evidence.

(The court

actually alternatively held the sperm evidence was a harmless
error, after concluding that the conviction did not depend upon the
evidence at all once the judge struck it.

Resp’t Ex. A, at 4-5.)

It nonetheless affirmed the conviction as more than amply supported
by proper evidence.

(The void sentence was also an error, but not

one which would have affected the trial outcome.)
The Appellate Court did not specifically conduct a cumulative
error analysis, but repeatedly emphasized the strength of the
- 14 -

remaining evidence in the case, including:

the victim’s detailed

account of the assault, which the trial court found credible; her
knife wound; the blood at the scene; the victim’s sliced-open
clothing

from

the

night

of

the

attack;

and

the

victim’s

“consistent, repeated, and contemporaneous outcries to neighbors,
police, and medical personnel.” Id. at 5, 10.

This evidence, it

found, “more than supports” the conviction. Id. at 5.
This Court agrees.

Even counting the sperm evidence as an

error, the cumulative errors were harmless in light of the factual
findings above, which are not challenged here.
§ 2254(e).

Cf. 28 U.S.C.

Petitioner’s conviction is well supported, and he

cannot make the necessary showing that his trial was fundamentally
unfair or that the outcome probably would have been different but
for the trial court’s errors.

Accordingly, relief on Claim 6 is

denied.
G.
Petitioner

argues

that

Claim 7
he

was

improperly

convicted

on

Counts 1, 2 and 3 because an unspecified element of those offenses
was never proved.

This allegation, too, is insufficient under

Rule 2(c).
Even assuming, as Respondent does, that Petitioner means to
argue again that he was not proved to have used or displayed a
weapon

during

meritless.

the

attack,

that

claim

is

both

defaulted

and

The claim was defaulted when Petitioner failed to
- 15 -

present it in either the subsequent appeal or PLA.

The claim is

meritless because the victim testified that there was a knife near
the bed throughout the attack and that Petitioner used it during
the attack to cut off her clothes.
found her testimony credible.

R. 155-56.

The trial court

Because this claim was inadequately

pled, defaulted, and meritless, this Court denies relief.
H.

Claim 8

Petitioner appears to make two arguments in Claim 8:

that

Illinois’ Truth in Sentencing Law unconstitutionally discriminates
against violent offenders by forcing them to serve longer sentences
and a higher percentage of their time, and that it conflicts with
the policy of returning defendants to society set out in Article 1,
Section 11 of the Illinois Constitution.
The claim that the Truth in Sentencing law violates the
Illinois Constitution is not a cognizable habeas claim.
The federal habeas statute only allows relief when a person is
in custody “in violation of the Constitution or laws or treaties of
the United States.”

See 28 U.S.C. § 2254(a).

Therefore, even if

the statute violated the Illinois Constitution, it could not be
remedied here.
To the extent that Petitioner claims that the disparate
treatment of violent offenders violates the federal Constitution,
his claim is meritless.

Violent felony offenders are not a

protected class under the equal protection clause. Bottom v.
- 16 -

Pataki, No. 9:03-CV-835, 2006 WL 2265408, at *7 (N.D.N.Y. August 7,
2006).

Petitioner has not even attempted to demonstrate that the

law has no rational basis. Accordingly, habeas relief is denied.
I.

Claim 9

In Claim 9, Petitioner challenges the performance of the
counsel appointed to assist him in his post-conviction petition.
Respondent is correct, however, that petitioners may not challenge
the

effectiveness

of

counsel

during

state

post-conviction

collateral proceedings through federal habeas claims.
U.S.C. § 2254(I).

See 28

Because the requested relief is specifically

barred by the habeas statute, Claim 9 is denied.
J.

Claim 10

Petitioner also claims that his due process and Seventh
Amendment rights were violated because he was mistakenly led to
believe that “all aspects of his trial on appeal would be looked at
the same in a bench trial as opposed to trial by jury[.]”

Pet. 4.

Although Petitioner did endeavor to present this claim in his postconviction petition, he defaulted by failing to present it on
appeal or in his PLA.

(As noted above, his explanations for

defaulting the claims on appeal lack credibility and cannot satisfy
the cause-and-prejudice standard.)

In any event, this claim lacks

merit.
Petitioner makes no effort to explain the harm he claims to
have suffered. Even going back to his post-conviction petition for
- 17 -

relief, he makes only two vaguely related claims.

The first is

that if there is no difference between a bench and jury trial, his
counsel should not have informed the prosecutor that they would
proceed without a jury.

Resp’t Ex. F at Ex. A thereto, at 4.

does

harm

not

identify

any

he

suffered

from

this

He

customary

scheduling measure, however.
As best the Court can tell, Petitioner also complained that
the judge initially considered the sperm evidence that she later
struck from the record.

See id. at 17.

He contends that a jury

hearing such evidence would have entitled him to a mistrial, and
thus presumably that the bench trial should similarly have been
declared a mistrial. Id. at 10.

He fails to appreciate, however,

that a mistrial would only have entitled him to a second trial at
which the improper evidence was not presented. That is essentially
what he

received

when the

court

excluded

evidence but reaffirmed his conviction.

the

improper

sperm

A judge is presumed to

have relied only on competent evidence in her ruling.
States v. Stanley, 411 F.2d 514, 516 (7th Cir. 1969).

United

(A similar

presumption applies to limiting instructions in jury trials.)
Petitioner has shown no reason why this Court cannot trust that the
trial judge relied on competent evidence in re-evaluating the
conviction.

Accordingly, even liberally construed, Claim 10 does

not entitle Petitioner to habeas relief.

- 18 -

K.

Claim 11

Finally, Petitioner argues that a three-year term of mandatory
supervised release (“MSR”) not imposed by the judge at resentencing
has been unconstitutionally

added

to

his

sentence.

For

the

following reasons, this Court agrees.
Respondent contends that this claim was partially defaulted in
that Petitioner failed to develop his constitutional argument (as
opposed to a general unlawfulness argument) until the PLA following
his re-sentencing.

This Court, however, concludes that Petitioner

did not procedurally default his MSR claim.
As noted above, Petitioner’s counsel filed an Anders motion
regarding his re-sentencing appeal, but did not address the MSR
issue.

Petitioner

objected,

noting

that

the

MSR

meritorious and required the assistance of counsel.

issue

was

He cited no

cases, but objected to “serving a sentence, in custody, which
exceeds the judgment of the sentencing court.” After examining the
record, the Appellate Court agreed that the appeal was meritless.
Resp’t Ex. P, at 6.

It considered and rejected Petitioner’s MSR

claim on state constitutional terms, noting that the Illinois
Supreme Court only requires MSR admonishments to defendants who
plead guilty. Id.
After that ruling, Petitioner sought rehearing, this time
including case support for the unconstitutionality of the MSR term.
Among others, he relied on Earley v. Murray, 462 F.3d 147 (2d Cir.
- 19 -

2006) and Hill v. U.S. ex rel Wampler, 298 U.S. 460 (1936) to show
that terms of imprisonment must be set by the sentencing judge.
See Pet’r Reply Br. Ex. A.

Cf. Byers v. Basinger, 610 F.3d 980,

985 (7th Cir. 2010) (citation to federal constitutional cases
weighs in favor of finding a claim fairly presented to state
courts).

The Appellate Court denied the petition for rehearing

without comment. Pet’r Reply Br. Ex. B.
District courts have reached varying conclusions about whether
not raising a claim until a petition for rehearing results in
default. Compare Ambrose v. Evans, No. 10–CV–172, 2011 WL 5439106,
at *2 n.2 (S.D. Ill. July 11, 2011) (finding default) with U.S. ex
rel. Brown v. McCann, No. 06 C 2730, 2007 WL 2962783, at *6 (N.D.
Ill. Oct. 5, 2007) (noting that new arguments are barred from
petitions for rehearing, but declining to find default on that
ground where the petition was denied without comment.)
On this record, the Court will not find default.

Because

Petitioner identified the MSR issue in his response to the Anders
motion, his elaboration of that claim petition for rehearing was
arguably permissible under Illinois Supreme Court Rule 367(b),
which

limits

misapprehended.”

such

petitions

to

points

“overlooked

or

Because Petitioner identified the MSR issue as

one requiring the assistance of counsel, and responded with indepth briefing when his request for counsel was denied, this Court
finds that he preserved his claim.
- 20 -

On the merits, this Court can find no mention of an MSR term
in either the re-sentencing transcript or the official copy of the
judgment and commitment.

R. 598-99; Resp’t Ex. M.

The question is

thus whether the Department of Corrections can constitutionally
impose an MSR term required by state law but not imposed by the
sentencing judge.

This Court concludes that it cannot.

In considering an almost identical question under New York
law, the Second Circuit found a violation of due process.
v. Murray, 451 F.3d 71, 75, 76 n.1 (2d Cir. 2006).

Earley

It further

concluded that the unconstitutionality of the later-added MSR term
was clearly established by the Supreme Court in the 1936 case Hill
v. United States ex rel. Wampler, 298 U.S. 460 (1936). In Wampler,
the Court granted habeas where a court clerk, rather than the
sentencing judge, added the customary term of confinement that the
petitioner be held until he paid fees and costs.
Justice

Cardozo

authority.

emphasized

Id. at 465.

that

only

judges

Id. at 465-66.
have

sentencing

See also U.S. ex rel. Chasteen v.

Denemark, 138 F.2d 289, 291 (7th Cir. 1943) (“A commitment depends
for its validity on the judgment behind it. If the judgment and
sentence do not authorize detention, no mittimus will avail to make
detention lawful.”)
The Second Circuit recognized, as does this Court, that
Wampler did not deal with a term of imprisonment mandated by state
law.

Earley, 451 F.3d at 74-76.
- 21 -

Even so, it concluded that

imprisonment could not exceed that imposed by the judge, and that
habeas was appropriate. Id. at 77. This Court finds that reasoning
persuasive, and concludes that the imposition of an MSR term by the
Department of Corrections would violate Petitioner’s due process
rights.

Cf. People v. Munoz, --- N.E.2d ---, 2011 WL 6440551, at

*2 (Ill. App. Ct. December 19, 2011) (voiding MSR term in excess of
that imposed by sentencing judge).
violated

federal

law

The Appellate Court’s judgment

established

by

Wampler,

and

habeas

is

appropriate. See 28 U.S.C. § 2254(d)(1). Accordingly, a writ will
issue to excise the term of mandatory supervision from Petitioner’s
sentence.

Cf. Earley, 451 F.3d at 77.

However, as in Earley, this

ruling is not intended to preclude any motion in state court to
lawfully modify Petitioner’s sentence to include an MSR term. Id.
IV.

CERTIFICATE OF APPEALABILITY

In order to obtain a certificate of appealability, Petitioner
must

make

a

“substantial

constitutional right.”

showing

of

the

28 U.S.C. § 2253(c).

denial

of

[a]

He has made such a

“substantial showing” if “reasonable jurists could debate whether
. . . the petition should have been resolved in a different manner
or

that

the

encouragement
445, 446

(7th

issues
to

presented

proceed

Cir.

2011)

were

further.”
(Ripple,

omitted).

- 22 -

adequate

to

deserve

Resendez v. Knight, 653 F.3d
J. in

chambers)

(citation

Other than on Claim 11 (on which it granted relief), this
Court concludes that Petitioner failed to make a substantial
showing that his constitutional rights were denied. Accordingly, it
denies a certificate of appealability.
V.

CONCLUSION

For the reasons stated herein, the Court issues a Writ of
Habeas

Corpus

striking

the

period

of

MSR

from

Petitioner’s

sentence, but declines to issue a writ on all other grounds.
Certificate of Appealability is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: January 19, 2012

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A