Dismukes v. Mueller et al

Filing 16

MEMORANDUM OPINION. This matter is before the court on Petitioner Jarrel Dismukes' (Dismukes) pro se petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. 2254 (Section 2254). For the reasons stated below, the Petition is denied. Signed by the Honorable Samuel Der-Yeghiayan on 11/16/2017. Mailed notice (ags, )

IN THE UNITED STATES DISTRICT COURI
FOR THE NORTHERII DISTRICT OF ILLINOIS
EASTERN DIVISION
JARREL DISMUKES,
Petitioner,
v.

ROBERT MUELLER,
Respondent.

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No. 16 C 11720

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Jarrel Dismukes' (Dismukes) pro
se petition for

writ of

habeas co{pus (Petition) brought pursuant to 28 U.S.C. 5 2254

(Section 2254). For the reasons stated below, the Petition is denied.

BACKGROUND
In December 2013, following a bench trial in state court Dismukes was
convicted of unlawful possession of a weapon by a felon and aggravated unlawful
use of a weapon,

ffid was found to be an armed habitual criminal. Dismukes was

sentenced to fourteen years in prison. Dismukes filed an appeal and in June 2016 his
sentence was affirmed. Dismukes then filed a petition for leave to appeal (PLA)

with the Illinois Supreme Court, which was denied in September 20t6. Dismukes

contends that he filed a post-conviction petition, which was denied. Dismukes

further contends that he appealed the denial, and the trial court was affirmed in June
2016, and that a subsequent PLA was denied. In December 2016, Dismukes filed
the instant Petition.

LEGAL STANDARI)
An individual in custody pursuant to state court judgment may seek a writ of
habeas corpus pursuant to Section 2254, which provides the following:

An application for a writ of habeas co{pus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim--(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.
28 U.S.C. S 2254(d). The decision made by a state court is deemed to be contrary to

clearly established federal law

"'if

the state court applies a rule different from the

governing law set forth in [Supreme Court] cases, or

if it decides

a case differently

than [the Supreme Court has] done on a set of materially indistinguishable facts."'
Emerson v. Shaw,575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone,535 U.S.

685,694 (2002)). The decision by a state court is deemed to involve an
unreasonable application of clearly established federal law

"'if the state court

correctly identifies the governing legal principle from [Supreme Court] decisions but

unreasonably applies it to the facts of the particular case."' Emerson,575 F.3d at
684 (quoting Bell,535 U.S. at 694).

DISCUSSION
This court has liberally construed Dismukes' pro se filings. See Perruquet

v.

Briley,390 F.3d 505, 5 12 (7th Cir. 2004)(stating that "[a]s [the plaintiff] was
without counsel in the district court, his habeas petition [wa]s entitled to a liberal
construction"); Greer v. Board of Educ. of City of Chicago, Ill., 267 F .3d 723, 727
(7th Cir. 2001)(indicating that a court should "liberally construe the pleadings of
individuals who proceed pro se"). Dismukes fails to specifically indicate in his
Petition, the claims he is seeking to pursue in the Petition. Dismukes has, however,
attached a copy of what appears to be his PLA to his Petition. The court

will

therefore liberally construe the Petition to present the two claims that were included
in the PLA. Dismukes argues: (1) that a conculrence or dissent in an Illinois
Appellate Court decision should require a published opinion whenever its author

so

requests (Claim 1), and (2) thatthis court should interpret certain statutory language

in730ILCS

I.

Claim

515-4.5-50(c) and address Illinois constitutional matters (Claim 2).

1

Dismukes argues in Claim 1 that a published decision should be required
when there is a concurence or dissent in an Illinois Appellate Court decision if the

author requests publication. Justice Hyman wrote a concuffing opinion in the

Illinois Appellate Court decision affirming Dismukes' sentence. People
Dismukes,2016WL3421249, at *3

(I11.

v.

App. Ct.2016). In Claim l, Dismukes

adopts the statement made in that concurring opinion that when there is a concurring

or dissenting opinion, the opinion should be a published opinion if the author
requests and that the determination should not be based on the preference of the

majority on the panel. Id. at x4. Whether or not a state court decision in a case
should be a published opinion or unpublished opinion is an administrative matter for
the state court. To the extent that the issue raises any legal issues, it raises only state

law issues. In Dismukes PLA on direct appeal, which again is the document
attached to present his arguments in the instant Petition, Dismukes argues that a

determination needs to be made whether the publication policies of the Illinois
Appellate Court comply with Illinois Supreme Court Rule 23. (Pet. 8). Dismukes
raised no arguments regarding federal constitutional rights. The decision of the
appellate court to issue an unpublished opinion does not raise any federal claim and
is not a cognizable claim for federal review. See Perruquet v. Briley,390 F.3d 505,
51 1

(7th Cir. 2004)(stating that "[t]he remedial power of a federal habeas court is

limited to violations of the petitioner's federal rights, so only if a state court's errors
have deprived the petitioner of a right under federal law can the federal court

intervene"); see also Thomas v. Williams, 822 F .3d 378, 384 (7th Cir.
2016)(explaining that "[i]n those cases, the state court judgment rests on an

4

independent and adequate state ground, and principles of comity and federalism

dictate against upending the state-court conviction"). Claim

I

is therefore not a

cognizable claim. In addition, to the extent that Dismukes failed to raise Claim

1

through one complete round of the state appellate process, it is procedurally
defaulted and Dismukes has not shown that the default should be excused. Coleman
v. Hardy, 628 F.3d

3t4, 318 (7th Cir. 2010); Kaczmarek v. Rednour, 627 F.3d 586,

591 (7th Cir.2010); Promotor v.

II.

Pollard,628 F.3d 878, 887 (7th Cir. 2010).

Claim 2
Dismukes argues in Claim 2 that this court should interpret certain statutory

language in 730 ILCS 515-4.5-50(c) and address Illinois constitutional matters. The

interpretation of the meaning of a state statute is a matter of state law. See, e.g.,

Fidlar Acquisition Co. v. First Am. Data Tree LLC,2016V,lL 1259377, at *5 (C.D.
Ill.2}16)(explaining that "[t]he legal questions of statute and contract interpretation
presented arise entirely under Illinois law, so the Court must interpret and apply this

law as the Illinois Supreme Court would do"); PNC Bank, N.A. v. Van Hoornaar,44
F. Supp. 3d 846, 854 (E.D. Wis. 20l4)(stating that "interpretation and application of
Wisconsin statutes is a question of law for the Wisconsin courts"). Thus, Claim 2 is
Iikewise not a cognizable

claim. In addition, to the extent that Dismukes failed to

raise Claim 2 through one complete round of the state appellate process, it is

procedurally defaulted and Dismukes has not shown that the default should be

excused.

III.

Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing $ 225a Cases, the court must

issue or deny a certificate of appealability "when it enters a final order adverse to the

applicant." Id. A district court should only issue a certificate of appealability "if the
applicant has made a substantial showing of the denial of a constitutional right." 28
U.S.C. $ 2253(c)(2). The petitioner must also show that "reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were 'adequate to deserve
encouragement to proceed further."' Slack v, McDaniel, 529 U.S. 473, 484

(2000)(quoting Barefoot v. Estelle,463 U.S. 880, 893 (1983)). In the instant action,
Dismukes has not made a substantial showing of the denial of a constitutional right
as to any claims presented in his

Petition. Nor has Dismukes shown that reasonable

jurists could debate whether the Petition should have been resolved in a different
manner or that the issues presented in the Petition deserve encouragement to proceed

further. Therefore, should Dismukes decide to appeal this court's ruling, this court
finds that a certificate of appealability would not be warranted, and is denied.

CONCLUSION
Based on the foregoing analysis, the Petition is denied.

5#b-'fup'
Samuel Der-Yeghiayan
United States District Court Judge

Dated: November 16,2017