Demitro v. Roberts

Filing 63

MEMORANDUM AND OPINION denying petition for habeas relief. The Court declines to issue a certificate of appealability. The clerk of court is directed to enter judgment in favor of respondent. Signed by Magistrate Judge Clifford J. Proud on 10/16/2014. (jmt).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENNIS DEMITRO,
Petitioner,
vs.
JULIUS FLAGG,
Respondent.

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Civil No. 13-cv-394-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
Dennis Demitro pleaded guilty to a charge of first degree murder in the
Circuit Court of Cook County, Illinois, in November, 2000. Pursuant to a plea
agreement, he was sentenced to twenty years imprisonment.

He was not,

however, informed at or before sentencing that he was also subject to a
statutorily-mandated three year term of supervised release.
In April, 2013, Demitro filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. §2254, raising the following grounds:
1.

The imposition of a term of supervised release by the Illinois
Department of Corrections (“IDOC”) violates the due process clauses
of the Fifth and Fourteenth Amendments.

2.

The three year term of supervised release was not a part of the plea
deal that was agreed to by the state and petitioner.

3.

The imposition of the term of supervised release by the IDOC violates
separation of powers.

1

This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 53.

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Relevant Facts and Procedural History
In November, 2000, Demitro pleaded guilty to one count of first degree
murder. During the change of plea hearing, the judge did not inform him that his
sentence would include a three-year mandatory term of supervised release. Doc.
20, Ex. B, pp. 2-16.

On December 28, 2000, petitioner was sentenced to the

minimum possible sentence of twenty years imprisonment.

The term of

supervised release was not mentioned at the sentencing hearing. Doc. 20, Ex. B,
pp. 19-22.

The written Order of Commitment and Sentence did not contain any

reference to a term of supervised release. Doc. 20, Ex. C, p. 29. Petitioner did
not file a direct appeal. Doc. 1, p. 2.
In September, 2006, almost six years after he was sentenced, Demitro filed
a pro se petition for postconviction relief challenging the imposition of the term of
supervised release. Demitro alleged in state court that the mandatory supervised
release (“MSR”) term violated due process and “increases plea as well as court
imposed sentence.” Doc. 20, Ex. C, p. 6. The Circuit Court summarily dismissed
the petition, but the Appellate Court reversed because petitioner had raised the
gist of a meritorious constitutional claim.

Doc. 20, Ex. E, p. 14.

Appointed

counsel filed a supplemental petition raising claims that Demitro “was not given
the benefit of the bargain he made when he pled guilty” and Demitro’s due process
rights under the Fourteenth Amendment and the Illinois Constitution were
violated. Doc. 20, Ex. E, p. 29. As relief, Demitro asked that his sentence be
adjusted so that he would serve the last three years of his twenty year sentence on

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supervised release, thereby reducing his prison sentence to seventeen years. Ex.
E, p. 32.
The Circuit Court again dismissed because the petition was not timely filed
and Demitro failed to make a substantial showing that his constitutional rights
were violated. Doc. 20, Ex. E, pp. 43-47.
On December 17, 2010, the Appellate Court affirmed the dismissal on
substantive grounds. Demitro was seeking the benefit of the holding in People v.
Whitfield, 840 N.E. 2d 658 (Ill. 2005), However, the Appellate Court affirmed the
dismissal of his petition because the Illinois Supreme Court held in People v.
Morris, 925 N.E.2d 1069, 1081 (Ill. 2010), that Whitfield does not apply
retroactively to convictions that were final before December 20, 2005.

Doc. 20,

Ex. F. Demitro did not file a PLA. Doc. 20, p. 3.
Demitro filed his §2254 petition in April, 2013.

Respondent raised the

issue of the statute of limitations. The issue of timeliness has been the main focus
of the proceedings to date. After the Seventh Circuit reversed and remanded for
further proceedings on the question of equitable tolling, the Seventh Circuit
issued its decision in Carroll v. Daugherty, 764 F.3d 786 (7th Cir. 2014), which
speaks to the substantive issue raised in Demitro’s petition.
Law Applicable Habeas Petition
This habeas petition is subject to the provisions of the Antiterrorism and
Effective Death Penalty Act, known as the AEDPA.

“The Antiterrorism and

Effective Death Penalty Act of 1996 modified a federal habeas court's role in

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reviewing state prisoner applications in order to prevent federal habeas ‘retrials’
and to ensure that state-court convictions are given effect to the extent possible
under law.” Bell v. Cone, 122 S.Ct. 1843, 1849 (2002).
Habeas is not yet another round of appellate review. 28 U.S.C. §2254(d)
restricts habeas relief to cases wherein the state court determination “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 “a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.”
A judgment is “contrary to” Supreme Court precedent if the state court
“contradicts the governing law set forth in [Supreme Court] cases. “ Coleman v.
Hardy, 690 F.3d 811, 814 (7th Cir. 2012), citing Williams v. Taylor, 120 S. Ct.
1495 (2000).

A state court decision is an “unreasonable application of” clearly

established law “if the state court identifies the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably applies that principle to
the facts of the prisoner's case.” Id.

The scope of federal review of state court

decisions on habeas is “strictly limited” by 28 U.S.C. § 2254(d)(1). Jackson v.
Frank, 348 F.3d 658, 661 (7th Cir. 2003). The unreasonable application standard
is “a difficult standard to meet.” Id., at 662.

Even an incorrect or erroneous

application of the federal precedent will not justify habeas relief; rather, the state
court application must be “something like lying well outside the boundaries of
permissible differences of opinion.” Id., at 662 (internal citation omitted).

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Analysis
Respondent contends that Demitro’s habeas petition is untimely and that
his claims are procedurally defaulted because he did not present them for one full
round of state court review. See, O’Sullivan v. Boerckel, 119 S.Ct. 1728 (1999).
A habeas court may resolve a petition on the merits without first resolving issues
of timeliness and procedural default. “It makes sense to tackle the merits first
when they are easy and the limitations question hard, just as it makes sense (and
is permissible) to reject a collateral attack on the merits while other procedural
defenses, such as waiver, default, or lack of exhaustion, remain in the
background. 28 U.S.C. § 2254(b)(2).” Estremera v. U.S., 724 F.3d 773, 775 (7th
Cir. 2013). In view of the clear guidance provided in Carroll v. Daugherty, 764
F.3d 786 (7th Cir. 2014), it is appropriate to resolve the petition on the merits.
Both petitioner and respondent agree that Carroll is dispositive here. See,
Docs. 57 & 58.
The petitioner in Carroll was convicted in an Illinois court and was
sentenced to a term of imprisonment.

As in our case, Carroll’s sentence was

subject to a mandatory term of supervised release pursuant to 730 ILCS 5/5-81(d), but Carroll was not informed of the MSR term at sentencing and the MSR
term was not set forth in the written judgment. Carroll, 764 F.3d at 787. Carroll
sought habeas relief, raising arguments similar to the arguments raised here.
The Seventh Circuit first rejected the argument that the MSR term had been
illegally added by the IDOC. Rather, the term was included in the sentence by

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operation of statute:
The Supreme Court of Illinois has held that omission of a required term of
supervised release from a sentence is not error, because the state's
supervised-release statute provides that “every sentence shall include as
though written therein a term [of supervised release] in addition to the
term of imprisonment. 730 ILCS 5/5–8–1(d).” People v. McChriston, 378
Ill.Dec. 430, 4 N.E.3d 29, 33 (Ill.2014) (emphasis added).
Carroll, 764 F.3d at 788-789.
The Seventh Circuit next flatly rejected the argument that failure to recite
the MSR term at sentencing or to include it in the written judgment violates
federal due process rights. Carroll, 764 at 789.
Demitro’s first and third grounds for habeas relief are premised on the idea
that the MSR term was added to his sentence by the IDOC. The Seventh Circuit’s
opinion in Carroll makes it clear that the MSR term was imposed by operation of
statute, and not by an illegal action of the IDOC. Carroll, 764 F.3d at 788-789.
Further, the correction of the sentence by the IDOC does not violate Demitro’s
federal due process rights. Carroll, 764 F.2d at 789. Therefore, his first and
third grounds are rejected.
Petitioner’s second ground requires a little more discussion. This case is
slightly different from Carroll in that Demitro entered a guilty plea pursuant to a
plea agreement, while Carroll was convicted after a trial. For his second ground,
Demitro argues that the imposition of the MSR term violates his plea agreement.
Petitioner is presumably attempting to present a “benefit of the bargain” claim
under Santobello v. New York, 92 S.Ct. 495 (1971).

The state court cited

Santobello, noting that the Illinois Supreme Court’s decision in People v.
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Whitfield, 840 N.E. 2d 658 (Ill. 2005), relied on Santobello. Doc. 20, Ex. F, p. 4.
Demitro has not demonstrated that the state court unreasonably applied
Santobello. In fact, it did not. Significantly, Demitro does not claim that the state
promised him as part of the agreement that he would not have to serve a MSR
term or that he was given incorrect information with reference to a term of
supervised release. Rather, he bases his claim on the fact that he was not told
anything about a mandatory term of supervised release. Therefore, he cannot
make a benefit of the bargain argument under Santobello.

To succeed on a

Santobello claim, petitioner “must prove the government also promised that the
MSR term would not attach.” Villanueva v. Anglin, 719 F.3d 769, 778 (7th Cir.
2013).
This leaves only a general claim that the failure to inform petitioner of the
MSR term rendered his plea involuntary.

Here again, petitioner runs into the

limits of habeas review set forth in §2254(d)(1). In order to prevail, petitioner
must show that the state court’s decision was contrary to or unreasonably
applied federal law “as determined by the Supreme Court of the United States.”
See, Lopez v. Smith, __ S. Ct. __, 2014 WL 4956764, *1 (2014), and Marshall v.
Rodgers, 133 S. Ct. 1446, 1449 (2013), emphasizing that the enquiry under
§2254(d)(1) concerns federal law as determined by the Supreme Court.
Petitioner cannot do so here:
There is no Supreme Court precedent for the proposition that a defendant
must be advised of a term of MSR at the time he attempts to enter a plea of
guilty. Quite the contrary, the Court has expressly declined to decide such
an issue in the very similar context of parole. See Lane v. Williams, 455
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U.S. 624, 630 n. 9, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982) (“We do not
decide whether, to establish such a constitutional violation, respondents
must claim that they in fact did not know of the parole requirement at the
time they pleaded guilty or that they would not have pleaded guilty had they
known of this consequence.”).
Lockhart v. Chandler, 446 F.3d 721, 724 (7th Cir. 2006).
Lastly, the Court notes that petitioner has clearly stated that he does not
wish to attempt to withdraw his guilty plea. See, Doc. 57, ¶2 and Doc. 61, ¶1(b).
Rather, he wants to swap “three years of prison for an equivalent term of
supervised release, a trade obviously advantageous to a prisoner.” Carroll, 764
F.3d at 790.

The Seventh Circuit held in Carroll that a petitioner “has no

constitutional right to such a trade just because the judge left something out of the
sentence that doesn't have to be in it in order to authorize the full measure of
punishment that [he] has been ordered to undergo.” Ibid.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, this Court must “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” A certificate
should be issued only where the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §2253(c)(2).
Where a habeas petition is rejected on the merits, a certificate of
appealability may issue only where the petitioner demonstrates 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

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adequate to deserve encouragement to proceed further.” Peterson v. Douma, 751
F.3d 524, 528 (7th Cir. 2014), quoting Slack v. McDaniel, 120 S.Ct. 1595, 16031604 (2000).
Here, no reasonable jurist would find it debatable whether Demitro is
entitled to habeas relief under 28 U.S.C. §2254. Accordingly, the Court denies a
certificate of appealability.
Conclusion
Dennis Demitro’s petition for habeas relief under 28 U.S.C. §2254 (Doc. 1)
is DENIED.
This action is DISMISSED WITH PREJUDICE.

The Clerk of Court shall

enter judgment accordingly.
IT IS SO ORDERED.
DATE: October 16, 2014.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATE MAGISTRATE JUDGE

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