Parker v. Korte
ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 9/16/2016. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER L. PARKER,
Case No. 16-cv-0908-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Christopher Parker, who is currently incarcerated in Western
Illinois Correctional Center, brings this habeas corpus action pursuant to
28 U.S.C. § 2254 (Doc. 1), in order to challenge his 2009 conviction and sentence
for criminal sexual assault in Jersey County Circuit Court (Doc. 1, pp. 1-20).
He was sentenced to five years and three months in the Illinois Department of
Corrections (“IDOC”), followed by mandatory supervised release (“MSR”) for a
term of three years to life (id.). Parker claims that he has now served more time
than he “a[g]reed to,” but he remains incarcerated because of a statewide
“turnaround policy” that requires parole-eligible inmates with no suitable host site
to serve out their MSR term in prison (id. at 7, 9). In connection with this claim,
Parker now asks this Court to declare 730 ILCS § 5/5-8-1(d)(4) 1 unconstitutional,
terminate his remaining MSR term, and order his release from custody (id. at 8).
This statute sets an MSR range of three years to life for any defendant who commits
criminal sexual assault in Illinois. 730 ILL. COMP. STAT. § 5/5-8-1(d)(4).
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This matter is now before the Court for a preliminary review of the § 2254
Petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States
Rule 4 provides that upon preliminary consideration by the
district court judge, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.”
After carefully reviewing the § 2254 Petition and exhibits filed by Parker, 2 the
Court concludes that he is not entitled to relief, and the instant § 2254 Petition
shall be DISMISSED.
Parker was charged with two counts of criminal sexual assault, predatory
criminal sexual assault, and criminal sexual abuse in Jersey County Circuit
Court. He ultimately pleaded guilty to one count of criminal sexual assault in
violation of 720 ILCS § 5/12-13(a)(2) on June 24, 2009 (Doc. 1, pp. 1-19).
Parker was sentenced to a term of five years and three months of incarceration,
followed by a mandatory supervised release term of three years to life (id. at 1-2,
23). He did not file a timely motion to withdraw this guilty plea or appeal the
judgment of conviction (id. at 2).
However, he filed other post-conviction petitions and motions (id. at 3).
On June 29, 2010, for example, Parker filed a post-conviction petition, which the
This includes a review of the following documents filed by Parker: (1) § 2254 Petition
(Doc. 1, including Exhibits A-1 through A-4); (2) Case History (Doc. 6); (3) Memorandum
of Law (Doc. 7, including Exhibits B-1 through B-20); and (4) Exhibits C, D, E, and F
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trial court denied on July 13, 2010. See Parker v. Roeckman, No. 13-cv-0206DRH-CJP (S.D. Ill. 2013) (Doc. 60, pp. 2-3) (summarizing post-conviction
proceedings). Parker appealed this decision but voluntarily dismissed the appeal
on April 1, 2011 (id. at 3).
Also in 2010 and 2011, Parker filed a second post-conviction petition, a
motion to reconsider the same, a motion to withdraw his guilty plea, and a motion
for relief from judgment, each of which was denied. Parker appealed the denial of
two of these motions but, again, sought voluntary dismissal of his appeals.
In November 2012, he sought leave to file a habeas petition in the Illinois
Supreme Court, but this request was also denied (id.).
Parker instead filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 in this District on February 18, 2013. See Parker v. Roeckman,
No. 13-cv-0206-DRH-CJP (S.D. Ill. 2013) (Doc. 1) (“first § 2254 Petition”). He
raised a single claim in the first § 2254 Petition, i.e., Parker’s statutorily-imposed
MSR term was unconstitutional (“Claim 1”) (Docs. 1, 8, first § 2254 Petition). He
was later granted leave to bring a second claim, i.e., Parker’s constitutional rights
were violated when he was questioned at the age of seventeen outside the presence
of a parent, legal guardian, or lawyer (“Claim 2”) (Docs. 24, 29, first § 2254
He was also granted leave to raise a third claim, i.e., Parker’s
constitutional rights were violated when he was forced to serve his term of MSR in
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prison because a suitable host site was unavailable 3 (“Claim 3”) (Docs. 33, 40,
first § 2254 Petition).
This Court granted the Respondent’s motion to dismiss the first § 2254
Petition on July 14, 2014 (Docs. 36, 60, first § 2254 Petition).
concluded that Claims 1 and 2 were time-barred under § 2244(d)(1)(A) and
dismissed both of these claims with prejudice (Doc. 60, pp. 4-9, first § 2254
Petition). The Court concluded that Claim 3 was unexhausted and dismissed the
third claim without prejudice (id. at 9-13).
The Court declined to issue a
certificate of appealability (id. at 13-14).
Ten days later on July 24, 2014, Parker filed a petition for relief from
judgment with the state trial court (see Doc. 7-2, p. 8). In it, Parker claimed that
he was not informed at the time of entering a guilty plea “that if [he] could not find
a ‘host site’ [he] would not have an outdate from IDOC’” (id.). Parker requested
permission to withdraw his guilty plea and also asked that the state trial judge
recuse himself from the post-judgment proceedings. Both requests were denied
one week later (id. at 9). Parker filed a motion to reconsider on August 27, 2014,
arguing that he was “not getting the bargain on [his] plea” because he remained
incarcerated with no definite release date after serving seven years (id.).
His motion was denied the same day.
Parker filed an appeal, which is now pending. In it, he raises two claims.
First, Parker asserts that the trial court’s sua sponte dismissal of his petition for
In his second § 2254 Petition and related filings, Parker asserts that he was not allowed
to bring this claim in his first habeas action and that his first § 2254 Petition was denied
because of an impending release date. Both of these statements are patently false.
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relief from judgment less than thirty days after its filing was premature, and the
trial court committed reversible error when it denied Parker’s motion for
substitution of judge (id. at 10-16). Parker’s court-appointed appellate counsel
filed the opening brief in the appeal on July 22, 2016. Less than one month later,
Parker filed his second § 2254 Petition in this District.
In his second § 2254 Petition, Parker again challenges the constitutionality
of his MSR term, in light of the “turnaround policy,” on due process grounds
under the Fifth and/or Fourteenth Amendments, ineffective assistance of counsel
grounds under the Sixth Amendment, and as constituting cruel and unusual
punishment under the Eighth Amendment (Doc. 1, pp. 9, 11, 17). In doing so,
Parker attempts to revive Claim 1 (i.e., that his statutorily-imposed MSR term was
unconstitutional) and Claim 3 (i.e., that his constitutional rights were violated
when he was forced to serve his term of MSR in prison because no suitable host
site was available) from his first § 2254 Petition.
The second § 2254 Petition must be dismissed. Parker has already brought
a § 2254 Petition in this Court to challenge the constitutionality of his MSR term
on due process grounds (Claim 1, first § 2254 Petition). On July 14, 2014, this
Court dismissed this claim as time-barred (see Doc. 60, first § 2254 Petition).
The dismissal was with prejudice (id. at 14).
Parker is now foreclosed from
raising this claim again in his second § 2254 Petition.
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Parker was not foreclosed from bringing a constitutional challenge to his
continued incarceration based on the operation of the “turnaround policy”
(Claim 3, first § 2254 Petition). The Court previously dismissed Claim 3 without
prejudice because it was clear from Parker’s first § 2254 Petition that the claim
was unexhausted (Doc. 60, pp. 9-13, first § 2254 Petition). The Court explained
that state court remedies remained available to Parker:
[W]hen determining whether a petitioner has exhausted his state
court remedies, “the pertinent question is not whether the state court
would be inclined to rule in the petitioner’s favor, but whether there
is any available state procedure for determining the merits of
petitioner’s claim.” White v. Peters, 990 F.2d 338, 342 (7th Cir.
1993). Here, Parker could file a mandamus action in the state court,
and he was required to do so before filing his federal habeas petition
even if he expected the state court to rule against him. See Neville v.
Walker, 878 N.E.2d 831 (Ill. App. Ct. 2007) (reviewing denial of
inmate’s mandamus action challenging the IDOC’s refusal to release
him to MSR); Armato v. Grounds, 944 F. Supp. 2d 627, 635 (C.D. Ill.
2013) (suggesting habeas corpus and claim of false imprisonment are
other available remedies (citing Toney-El v. Franzen, 777 F.2d 1224,
1228 (7th Cir. 1985))). See also White, 990 F.2d at 342 (“Federalstate comity demands that a habeas petitioner first give the state
courts an opportunity to pass on his federal claims, even if those
courts would be expected to view such claims unfavorably”).
(id. at 12, first § 2254 Petition). Once Parker completed one full round of state
court review with respect to Claim 3, the Court explained that he was free to file a
new federal habeas petition (id. at 13).
This Court further determined that it was unnecessary to stay the first
habeas action while Parker returned to state court because “there is no danger
that his claim w[ould] be rejected as time-barred if he [chose] to refile in federal
court after properly exhausting his state remedies” (id. at 13) (citing Dolls v.
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Chambers, 454 F.3d 721, 725 (7th Cir. 2006) (holding district court has
discretion to consider staying habeas action while petitioner exhausts state
remedies if dismissal would foreclose federal habeas review because of lapse of
one-year limitations period).
See also Cox v. McBride, 279 F.3d 492, 493-94
(7th Cir. 2002) (the limitations period of § 2244(d) does not apply to petitions
contesting administrative decisions).
Despite the passage of two years since this Court dismissed the first § 2254
Petition, Parker has still not exhausted his state court remedies with respect to
Claim 3. He filed a petition for relief from judgment. An appeal of the decision
denying this petition is pending.
The ink on the opening brief in this appeal
barely dried before Parker, proceeding pro se, filed his second § 2254 Petition.
But Parker has still not complied with the exhaustion requirement under
28 U.S.C. § 2254(b)(1).
He has also failed to show cause and prejudice for his failure to exhaust.
See 28 U.S.C. § 2254(b)(1); McAtee v. Cowan, 250 F.3d 506, 508-09 (7th Cir.
2001). The Seventh Circuit has suggested that unjustifiable delays in a direct
criminal appeal may excuse a state petitioner from the exhaustion requirement
and even give rise to an independent due process claim under the Fourteenth
Amendment. Allen v. Duckworth, 6 F.3d 458 (7th Cir. 1993) (assuming, without
deciding, that excessive delay in state criminal appeal may amount to a denial of
due process). Parker describes no inordinate or unjustifiable delay in his appeal
that is attributable to anyone other than his own attorney. See, e.g., Harris v.
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Champion, 938 F.2d 1062 (10th Cir. 1991) (4-year delay in briefing appeal
excused state habeas petitioner from exhausting his state remedies). He has also
not raised a Fourteenth Amendment due process claim as it relates to the
ineffective assistance of his appellate defender in his second § 2254 Petition.
In light of these facts, the Court finds that Parker’s second § 2254 Petition meets
with the same fate as his first § 2254 Petition.
Parker’s Motion to Add Exhibits (Doc. 10) is GRANTED. The Court
considered the additional exhibits (i.e., Exhibits E and F, among others) offered
by Parker in the course of rendering this decision.
In light of the Court’s decision to dismiss Parker’s second § 2254 Petition,
Parker’s Motion to Suspend Sentence (Doc. 3), Motion for Oral Arguments
(Doc. 8), and Motion for Bail (Doc. 11) are DENIED.
Parker’s Motion for Leave to File Second 28 U.S.C. § 2254 Petition
(Doc. 12) for Habeas Corpus is DENIED as MOOT. It is not necessary to seek
this Court’s permission to file the instant habeas action, nor is it helpful to do so
three weeks after filing the second § 2254 Petition.
Parker’s Motion to Stay Proceedings (Doc. 13) is DENIED, consistent with
the above discussion.
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED without prejudice to any
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other habeas petition or civil rights action that Parker wishes to file. Claim 1
remains DISMISSED with prejudice, and Claim 3 is DISMISSED without
Claim 2, which Parker raised in his first § 2254 Petition, was
previously dismissed with prejudice and not included in the second § 2254
Should Parker desire to appeal this Court’s ruling dismissing his petition
for a writ of habeas corpus, he must first secure a certificate of appealability,
either from this Court or from the Court of Appeals. See FED. R. APP. P. 22(b);
28 U.S.C. § 2253(c)(1). Pursuant to Rule 11(a) of the Rules Governing Section
2254 Cases in the United States District Courts, the Court must issue or deny a
certificate of appealability “when it enters a final order adverse to the applicant.”
Id. This petition has been dismissed without prejudice because Parker failed to
exhaust his state court remedies prior to filing his § 2254 petition. Except in
special circumstances, such a dismissal without prejudice is not a final
appealable order, so a certificate of appeal ability is not required. See Moore v.
Mote, 368 F.3d 754, 755 (7th Cir. 2004).
Further, pursuant to 28 U.S.C. § 2253, a certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
This requirement has been interpreted by the Supreme
Court to mean that an applicant must show that “reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner need not show that his
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appeal will succeed, Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), but
petitioner must show “something more than the absence of frivolity” or the
existence of mere “good faith” on his part. Id. at 338 (citation omitted). If the
district court denies the request, a petitioner may request that a circuit judge
issue the certificate. FED. R. APP. P. 22(b)(1)-(3).
Here, no reasonable jurist would find it debatable whether this Court’s
ruling on the failure to exhaust state judicial remedies was correct. Accordingly, a
certificate of appealability shall NOT be issued.
The Clerk is DIRECTED to close this case.
IT IS SO ORDERED.
DATED: September 16, 2016.
by Judge David R.
United States District Court
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