Reyes-Lopez v. Dennison

Filing 3

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 9/5/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SERGIO REYES-LOPEZ,
No. Y-19963,
Petitioner,
vs.

Case No. 17-cv-849-DRH

JEFF DENNISON,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, a state prisoner who is currently incarcerated in the Shawnee
Correctional Center, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2254 to challenge the constitutionality of his confinement.
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
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 petition in
the present case, the Court concludes that petitioner is not entitled to relief, and
the petition must be dismissed without prejudice.
The Petition
Petitioner states that he pled guilty to two offenses in October 2015
(unlawful restraint, and aggravated battery to a police officer). (Doc. 1, p. 1). He

1

was sentenced to 3 years on each conviction, with the sentences to be served
concurrently.

Petitioner was eligible for day-for-day good time credits, so he

expected to be released on mandatory supervised release (MSR, also referred to
as parole) after serving 18 months in prison. His MSR term was to be 2 years.
Petitioner asserts that he has served the full 18 months and should now be
released to serve his period of MSR. He was incarcerated on October 26, 2015,
and became eligible for MSR on April 26, 2017. However, Respondent continues
to hold him in custody, which Petitioner claims has illegally turned his MSR
period into a prison sentence. (Doc. 1, p. 1). He further claims that he was
“punished” by IDOC staff when he refused to sign papers that required him to
voluntarily violate his MSR terms so that the IDOC could impose the “illegal
prison sentence” under which he is now held. (Doc. 1, pp. 2, 4, 9-10). 1
Petitioner states that he is a citizen of Mexico who does not have legal
status to be present in the United States, thus he faces deportation upon his
release from the custody of the Illinois Department of Corrections. (Doc. 1, pp. 2,
3). He has no legal address to which he could be released on MSR. (Doc. 1, p. 4).
Petitioner requests to be immediately released to the custody of federal
authorities so that he may be deported to Mexico, where he vows he will remain
and will never enter the U.S. again. (Doc. 1, p. 5).
Petitioner adds that he does not speak English and requests an interpreter
to translate his testimony at any hearing. (Doc. 1, p. 2).
The documentation attached to the Petition reveal that Petitioner lost 1 month of good
conduct credits and was given a disciplinary transfer for disobeying an order to sign
paperwork. (Doc. 1, p. 9).
1

2

Discussion
Before a habeas action may be heard in federal court, a petitioner is
required to exhaust his available remedies in state court, or else show cause and
prejudice for the failure to exhaust. 28 U.S.C. § 2254(b)(1); McAtee v. Cowan,
250 F.3d 506, 508-09 (7th Cir. 2001). To exhaust his remedies, a state prisoner
must fairly present his claim in each appropriate state court including a state
supreme court with powers of discretionary review. Byers v. Basinger, 610 F.3d
980, 985 (7th Cir. 2010); Baldwin v. Reese, 541 U.S. 27, 29 (2004); see also

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that 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”); Spreitzer v. Schomig, 219 F.3d 639, 644-45 (7th Cir. 2000).

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, 250 F.3d at 509. Further, “[i]f a prisoner fails to
present his claims in a petition for discretionary review to a state court of last
resort, those claims are procedurally defaulted.” Rodriguez v. Scillia, 193 F.3d
913, 917 (7th Cir. 1999); see also O’Sullivan, 526 U.S. at 848.
Here, the habeas Petition does not reveal any attempts by Petitioner to bring
his claim in state court before he filed this case. Further, Petitioner has not made
any showing of cause and prejudice for the failure to exhaust his state court
remedies on this matter. He must pursue relief in the Illinois courts before he

3

may maintain a habeas action in federal court. Plaintiff may be able to file an
action under the Illinois habeas corpus statute, 735 ILL. COMP. STAT. 5/10-101 et

seq., or may file a mandamus action.

See 735 ILL. COMP. STAT. 5/14-101 et seq.;

Turner-El v. West, 811 N.E.2d 728, 733 (Ill. App. 2004) (citing Taylor v. Franzen,
417 N.E.2d 242, 247, aff’d on reh’g, 420 N.E.2d 1203 (Ill. App. 1981)).
Until Petitioner brings his claim for release in state court and completes the
state appellate review process, his claim remains unexhausted, and a federal
habeas corpus action under § 2254 is premature. Accordingly, this action shall
be dismissed.

Disposition
For the reasons stated above, the instant habeas petition is DISMISSED
without prejudice. If necessary, Petitioner may re-file the claim raised herein after
his state court remedies are fully exhausted, so long as he does so within the
applicable time limits. See 28 U.S.C. § 2244(d)(1).
If Petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4).
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). If Petitioner
does choose to appeal and is allowed to proceed IFP, he will be liable for a portion
of the $505.00 appellate filing fee (the amount to be determined based on his
prison trust fund account records for the past six months) irrespective of the

4

outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons

v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857,
858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
A proper and timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline. A Rule 59(e) motion must
be filed no more than twenty-eight (28) days after the entry of the judgment, and
this 28-day deadline cannot be extended.
In a case where a state prisoner is challenging his conviction or sentence, a
certificate of appealability is required before he may pursue an appeal. However,
a certificate of appealability is not necessary where a state prisoner uses § 2254 to
challenge continued detention that has resulted from the revocation of good
conduct credits, or the refusal to authorize mandatory supervised release. See

Walker v. O’Brien, 216 F.3d 626, 637-39 (7th Cir. 2000) (certificate requirement
does not apply to a challenge to “the specific (additional) detention” that results
from the action of a non-judicial body such as a prison disciplinary committee or
parole board); see also Grandberry v. Keever, 735 F.3d 616 (7th Cir. 2013)
(declining to overrule Walker’s holding that no certificate of appealability is
needed for a state prisoner challenging the loss of good time credits); Evans v.

Circuit Court of Cook Co., 569 F.3d 665 (7th Cir. 2009).
Here, Petitioner is not attacking his conviction or his 3-year sentence.
Instead, he takes issue with prison officials’ refusal to release him after he served
the portion of his sentence that would entitle him to begin mandatory supervised

5

release when the day-for-day good time rule is applied.

Under the authority

above, Petitioner does not need to secure a certificate of appealability in the event
he chooses to appeal this order.
The Clerk is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
Signed this 5th day of September, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.09.05
13:30:43 -05'00'
United States District Judge

6