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STONE-EL v. ILLINOIS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


September 24, 1990

JOHN R. STONE-EL, Plaintiff,
v.
THE STATE OF ILLINOIS, Defendant

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 John Stone-El ("Stone-El") asks leave to file his pro se civil rights Complaint under 42 U.S.C. § 1983 ("Section 1983") without prepayment of the filing fee. As supplemented by an informally-framed Motion To Amend filed September 14, 1990, *fn1" Stone-El's Complaint seeks to challenge the constitutionality of two state court convictions, respectively entered on May 5, 1972 and May 30, 1973. Although Stone-El has completed his sentences under both those convictions, he asserts that still another sentence -- the one he is now serving -- was enhanced by the challenged convictions. *fn2" Stone-El names the State of Illinois as defendant and asks this Court to grant declaratory relief and to remand his criminal case back to the Circuit Court of Cook County for retrial.

 But a Section 1983 complaint is not the appropriate vehicle for a federal judicial review of the constitutionality of Stone-El's 1972 and 1973 convictions. Habeas corpus, with its concomitant requirement of exhaustion of state court remedies, provides the exclusive federal remedy for a state prisoner posing such a challenge (see Preiser v. Rodriguez, 411 U.S. 475, 500, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973); Scruggs v. Moellering, 870 F.2d 376, 378-79 (7th Cir. 1989)).

 In this instance Stone-El has already attempted to invoke that habeas remedy, but in United States ex rel. Stone v. Gramley, 1989 U.S. Dist. LEXIS 8189 (N.D.Ill.) this Court's colleague Honorable George Marovich dismissed that earlier habeas petition for lack of jurisdiction because Stone-El is no longer in custody under the convictions he seeks to attack. That jurisdictional conclusion has been validated by the highest possible authority -- Maleng v. Cook, 490 U.S. 488, 109 S. Ct. 1923, 1926, 104 L. Ed. 2d 540 (1989) (per curiam) has held that the use of an expired sentence to enhance a later sentence does not render the petitioner "in custody" on the earlier and fully-expired sentence. If Stone-El wants to challenge the asserted use of the now-expired 1972 and 1973 sentences to enhance the sentence he is now serving, his remedy is to attack that latest sentence and not the more-than-15-year-old convictions (see Crank, 905 F.2d at 1091). *fn3"

 Accordingly this Court finds no arguable legal basis for the complaint and denies Stone-El's motion for leave to file in forma pauperis (see Neitzke). In accordance with the procedure prescribed by Smith-Bey v. Hospital Administrator, 841 F.2d 751, 758 (7th Cir. 1988), this action is dismissed with prejudice pursuant to 28 U.S.C. § 1915(d). In addition Stone-El is informed:

 

1. If he wishes to appeal this order of dismissal, he must file a Notice of Appeal to the United States Court of Appeals for the Seventh Circuit with the Clerk of the Court of the United States District Court, 219 South Dearborn Street, 20th Floor, Chicago, Illinois 60604, within 30 days after the entry of judgment (see Fed.R.App.P. 4(a)).

 

2. Although this Court of course expresses no substantive views on this subject, Stone-El should also be aware that if the Court of Appeals were to determine that such an appeal were "frivolous" in the legal sense, that could result in the imposition of sanctions by that Court (see Fed.R.App.P. 38).


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