Davis v. Brum et al

Filing 13

ORDER DISMISSING CASE: The Court GRANTS respondent's 10 MOTION to Dismiss and DENIES and DISMISSES petitioner's § 2254 habeas petition without prejudice for failure to exhaust state judicial remedies. The Court further DENIES petitioner a Certificate of Appealability. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 12/7/2017. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAURICE DAVIS,
Petitioner,
vs.

Civil No. 17-cv-622-DRH-CJP

CRAIG FINDLEY,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
Maurice Davis was an inmate in the custody of the Illinois Department of
Corrections at the time he filed a petition for habeas relief pursuant to §2254,
Doc. 1.1 Now before the Court is respondent’s Motion to Dismiss Habeas Corpus
Petition, Doc. 10. Respondent argues that the petition must be dismissed because
petitioner failed to exhaust state judicial remedies. Petitioner has not responded
to the motion.
Relevant Facts and Procedural History
In September 2012, Davis was convicted of burglary by a jury in Madison
County, Illinois, and was sentenced to six years imprisonment to be followed by a
two-year term of mandatory supervised release. The Illinois sentence was to be
served concurrently with a Missouri term of imprisonment for parole violation,
and petitioner was credited with time served since his arrest on January 26,
2012.
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Petitioner was turned over to the Missouri Department of Corrections,

The Court uses the document, page and exhibit numbers assigned by the CM/ECF system.

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where he remained until July 12, 2013. Doc. 10, Ex. 1-3.
Because Davis was entitled to day-for-day credit on his Illinois sentence, he
was expected to serve three years (1095 days) on his six year sentence. As of July
12, 2013, he still had about 561 days left on his Illinois sentence. For reasons
that are not explained, when Davis was discharged from Missouri custody on July
12, 2013, he was not delivered into Illinois custody, but was simply released.
Around the time his Illinois sentence should have expired, the Madison
County State’s Attorney’s Office obtained a warrant for petitioner’s arrest so that
he could serve the time left on his Illinois sentence.

Davis was arrested on

January 26, 2015, and delivered into the custody of the Illinois Department of
Corrections. Ex. 1, p. 6.
Petitioner was released from the IDOC on August 9, 2016, but he violated
the terms of his MSR and was arrested and returned to the IDOC. Ex. 3, p. 2; Ex.
4, p. 1.
Davis filed two state court actions challenging his custody.

He filed a

mandamus action in Madison County in May 2015, which he voluntarily
dismissed in February 2016. Ex. 5-6, 8.

He also filed a state habeas petition in

Madison County in September 2015, which remained pending as of the filing of
respondent’s motion to dismiss in October 2017. No action had been taken in the
state habeas case since the issuance of an alias summons in February 2016. Ex.
7.

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Petitioner’s Current Status
According to respondent, petitioner was released from the IDOC and began
serving his MSR term on September 27, 2017.

Doc, 10, p. 3; Ex 2, p. 2.

Petitioner has not notified this Court of his release or of his current address.
The fact that petitioner has been released from prison, standing alone, does
not mean that the petition is moot. Davis contends that he should not have been
imprisoned in the IDOC in January 2015. If he is entitled to habeas relief, he
would be entitled to relief in the form of an earlier termination of his supervised
release. See, White v. Indiana Parole Board, 266 F.3d 759, 763 (7th Cir. 2001).
Applicable Legal Standards
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
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).
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.”

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28 U.S.C.A. § 2254(b)(1) requires that state judicial remedies be exhausted
before a federal court can grant habeas relief:
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.
The exhaustion requirement means that, before seeking habeas relief, a
petitioner is required to bring his claim(s) through “one complete round of the
State’s established appellate review process” because “the exhaustion doctrine is
designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the federal courts.”
O’Sullivan v. Boerckel, 119 S.Ct. 1728, 1732 (1999); see also 28 U.S.C. §2254(c).
Under the Illinois two-tiered appeals process, petitioners must fully present their
claims not only to an intermediate appellate court, but also to the Illinois
Supreme Court, which offers discretionary review in cases such as this one. Id. at
1732-1733.
Analysis
Petitioner has not responded to the motion to dismiss. He was informed of
the consequences of failing to do so in Doc. 12.
It is clear that petitioner has not exhausted state judicial remedies. The
action must therefore be dismissed.

The dismissal will be without prejudice.

After exhausting state judicial remedies, petitioner can file another § 2254
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petition.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, 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).
In order for a certificate of appealability to issue, petitioner must show that
“reasonable jurists” would find this Court’s “assessment of the constitutional
claims debatable or wrong.”

See, Slack v. McDaniel, 120 S.Ct. 1595, 1604

(2000). Where a petition is dismissed on procedural grounds without reaching
the underlying constitutional issue, the petitioner must show both that reasonable
jurists would “find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”

Slack v.

McDaniel, Ibid.
Here, no reasonable jurist would find it debatable whether this Court’s
ruling on failure to exhaust state judicial remedies was correct. Accordingly, the
Court denies a certificate of appealability.
Conclusion
Respondent’s Motion to Dismiss Habeas Corpus Petition, Doc. 10, is
GRANTED.

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This cause of action is DISMISSED WITHOUT PREJUDICE for failure to
exhaust state judicial remedies.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.

Judge Herndon
2017.12.07
05:47:32 -06'00'
United States District Judge

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Notice
If petitioner wishes to appeal the dismissal or denial of his petition, he may
file a notice of appeal with this court within thirty days of the entry of judgment.
Fed. R. App. P. 4(a)(1)(A). A motion for leave to appeal in forma pauperis should
set forth the issues petitioner plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C).
A certificate of appealability is required to appeal from the dismissal or
denial of a §2254 petition. Rule 11 of the Rules Governing §2254 Cases requires
that, when entering a final order adverse to the petitioner, the district court must
issue or deny a certificate of appealability.

Here, the Court has denied a

certificate. In order to appeal the dismissal or denial of his petition, petitioner
must obtain a certificate of appealability from the court of appeals.
Petitioner cannot appeal from this Court’s denial of a certificate of
appealability. Further, a motion to reconsider the denial does not extend the time
for appeal. See, Rule 11(a).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the thirty day appeal deadline.
Other motions, including a Rule 60 motion for relief from a final judgment, order,
or proceeding, do not toll the deadline for an appeal.

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