Carter v. IDOC et al
Filing
35
ORDER granting 24 Motion to Dismiss Case for Lack of Jurisdiction. Signed by Chief Judge David R. Herndon on 2/14/13. (klh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM DALE CARTER,
Petitioner,
vs.
Case No. 12–cv–0115–DRH–SCW
DONALD GAETZ,
Respondent.
MEMORANDUM & ORDER
HERNDON, Chief Judge:
This § 2254 habeas case comes before the Court on respondent’s motion to
dismiss. The motion ripened on November 15, 2012, with petitioner’s response.
(Doc. 26). For the following reasons, the Court grants the motion (Doc. 24).
BACKGROUND & PROCEDURAL HISTORY
In 2002, pro se petitioner William Dale Carter was convicted of home
invasion in the Circuit Court of Adams County, Illinois. (Case No. 01-CF-458).
He was sentenced to a twenty-year prison term. This habeas case, which Carter
brings pursuant to 28 U.S.C. § 2254, is premised on two claims: (1) that his
mandatory supervised release term from that conviction is invalid, and (2) that
the Illinois Department of Corrections (IDOC) has improperly (and in spite of the
jury in Case No. 01-CF-458 finding Carter not guilty of aggravated criminal sexual
assault) designated him a sex offender. Carter filed the petition in this case in
February 2012.
Almost seven months prior, Carter had filed a habeas petition in the
Central District of Illinois. (See Carter v. Gaetz, No. 11–cv–03173-RM). That
petition, like this one, relates to Carter’s conviction and sentence in Adams
County Case No. 01-CF-458.
The instant motion targets Carter’s petition with two arguments.
First,
respondent posits that, because Carter’s challenge of his mandatory supervised
release is a second or successive habeas petition, this Court has no jurisdiction
over it.
Secondly, respondent argues that (insofar as it challenges the IDOC’s
designation as a sex offender) Carter’s petition should be dismissed because he
has not exhausted administrative and state court remedies. The arguments will
be taken in turn.
1. Second Successive Petition
Whether proceeding under 28 U.S.C. § 2254 or § 2255, a habeas petitioner
must get permission from the Court of Appeals before filing second or successive
petition in the district courts. 28 U.S.C. § 2244(b); Altman v. Benik, 337 F.3d
764, 766 (7th Cir. 2003). See also White v. U.S., 371 F.3d 900, 903 (7th Cir.
2004) (“Congress made parallel changes to §§ 2254 and 2255 to ensure that
successive litigation would take place only under the most compelling of
circumstances.”); Nunez v. U.S., 96 F.3d 990, 991 (7th Cir. 1996) (“No matter
how powerful a petitioner’s showing, only [the Court of Appeals] may authorize
the commencement of a second or successive petition.”).
While not all
subsequent motions are “second or successive” within the meaning of the statutes
(for example, when they allege errors made in a resentencing that only came about
because the Petitioner prevailed on an earlier habeas petition), they are second or
successive when they challenge the underlying conviction. See Dahler v. U.S.,
259 F.3d 763 (7th Cir. 2001).
Respondent points out—and petitioner does not dispute—that the June
2011 habeas petition filed in the Central District of Illinois concerns the same
trial court judgment at issue here. A thorough check of the Central District’s case
filing records indicates that, indeed, Carter’s June 2011 habeas petition concerns
the same state criminal case as does this one: No. 01-CF-458, Circuit Court of
Adams County, Illinois. (See C.D. Ill. Case No. 11–cv–03173–RM, Doc. 1; Id.,
ECF entry dated Aug. 15, 2011). An attack on his mandatory supervised release
term is an attack on his sentence, since Illinois law requires a mandatory
supervised release term be added at sentencing. See 735 ILCS 5/5-8-1(d). Carter
may not challenge one aspect of his conviction in the Central District and another
in this Court. His challenge to his mandatory supervised release fits the plain
language of a “second or successive” petition, and he does not dispute
respondent’s assertion that he has not obtained permission from the Court of
Appeals to bring this case. His challenge to his mandatory supervised release
shall be dismissed. See Walker v. Roth, 133 F.3d 454, 455 n.1 (7th Cir. 1997)
(dismissal as successive is proper where prisoner seeks to challenge aspects of a
previously-challenged conviction).
Insofar as this case is based on Mr. Carter’s challenge to the mandatory
supervised release from his 2002 Adams County criminal conviction, his petition
must therefore be DISMISSED for lack of subject matter jurisdiction. See Suggs
v. U.S., --- F.3d ----, 2013 WL 173969, at *2 (7th Cir. 2013) (“Without
authorization from the court of appeals, the district court has no jurisdiction to
hear the petition.”).
2. Failure to Exhaust
The second claim in Carter’s habeas petition is that, as the result of a
“secret trial,” the IDOC improperly designated him as a sex offender. Because he
has not exhausted his available state court remedies pertaining to that assertion,
his case is subject to dismissal here.
Section 2254 provides:
(b)(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears
that—
(A) the applicant has exhausted the remedies
available in the courts of the State; or
(B)(i) there is an absence of available State
corrective process; or (ii) circumstances exist
that render such process ineffective to protect
the rights of the applicant.
***
(c) An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within
the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the
question presented.
To exhaust his remedies, a state prisoner must therefore present his claim in
each appropriate state court, including a state supreme court with powers of
discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (state prisoners “must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process.”). 1 A prisoner need not pursue
all separate state remedies that are available to him but must give the state courts
“one fair opportunity to pass upon and correct the alleged violations.” McAtee v.
Cowan, 250 F.3d 506, 509 (7th Cir. 2001).
In Illinois, a prisoner wishing to contest an IDOC sex offender classification
must proceed through two levels of administrative review—a written grievance
with his grievance officer or parole supervisor, then an appeal to the IDOC
Director—before he can bring his claims to state court. See 20 Ill. Adm.Code §§
504.810(a)–(b); 504.920(a); 504.850; 504.940. Once administrative remedies are
exhausted, he must exhaust available state court remedies.
In Illinois, state
courts compel public officials to comply with statutory or constitutional duties via
mandamus actions. Johnson v. McGinnis, 734 F.2d 1193, 1200 (7th Cir. 1984).
If dissatisfied in the circuit courts, the inmate must invoke one complete round of
It should be noted that Mr. Carter is well aware of § 2254’s exhaustion requirement. In this
judicial district, Carter has had two earlier habeas petitions dismissed for failure to exhaust. See
Carter v. Walker, 08–cv–575—MJR (filed Aug. 11, 2008); Carter v. Shawnee Prison, 11–cv–335–
DRH (filed Apr. 21, 2011).
1
appellate review, including seeking discretionary review before the Illinois
Supreme Court. McAtee, 250 F.3d at 508–09.
Here, it is undisputed that Carter has not begun (much less finished)
presenting his claim about his sex offender status for state administrative and
court review. The closest Carter came to exhausting his state administrative and
court remedies appears to be a series of letters and emails he claims to have sent
to state officials in protest of his classification as a sex offender. (Doc. 26, 7).
That is not enough for his petition to avoid dismissal here.
Carter has not
presented his complaint to a grievance or parole officer, much less the Illinois
Appellate Court or Supreme Court.
See O’Sullivan, 526 U.S. at 845 (the
exhaustion requirement helps avoid the “unseemliness of a federal district court”
interfering with state decisions “without the state courts having had an
opportunity to correct the constitutional violation in the first instance.”) (internal
citations and quotation marks omitted).
Insofar as it is premised a challenge to the IDOC’s designation of Mr. Carter
as a sex offender, the instant motion (Doc. 24) is GRANTED.
CONCLUSION
For the foregoing reasons, the Court GRANTS respondent’s motion to
dismiss (Doc. 24). The Court DISMISSES for lack of subject matter jurisdiction
petitioner’s claim that his mandatory supervised release from his 2002 conviction
is invalid, and DISMISSES without prejudice to re-filing (once his state court
remedies are exhausted) his claim that the IDOC has wrongfully categorized him
as a sex offender. All claims having been DISMISSED, the Clerk shall CLOSE
THIS CASE.
IT IS SO ORDERED.
DATE: February 14, 2013
Digitally signed by
David R. Herndon
Date: 2013.02.14
16:25:12 -06'00'
Chief Judge
United States District Court
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