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UNITED STATES EX REL. ROBINSON

February 23, 1994

UNITED STATES OF AMERICA, ex rel., VIRGIL COTTY ROBINSON, Petitioner,
v.
GEORGE C. WELBORN, Warden, et al., Respondents.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Now before this court is Virgil Robinson's pro se petition for a writ of habeas corpus. Robinson alleges that the application of day-for-day good time credits to his sentence, instead of statutory and compensatory credits, violates the ex post facto clause of the United States Constitution. U.S. CONST. art. I, § 10. Respondent moves this court to dismiss Robinson's petition as procedurally defaulted, as an abuse of the writ, or on the merits. For the reasons set forth below, Respondent's motion is granted and Robinson's petition is denied.

 I. BACKGROUND

 On September 21, 1977, Robinson shot and killed Stephen Taylor at the door of Taylor's apartment. After a jury trial, Robinson was found guilty of murder, and in 1979 he was sentenced to 200 to 600 years. The subsequent procedural history provided to the court and discernable from the case law is as follows: On direct appeal, the Illinois Appellate Court affirmed Robinson's conviction, 91 Ill. App. 3d 1138, 415 N.E.2d 585, 47 Ill. Dec. 580 (1st Dist. 1980). In 1981, Robinson unsuccessfully petitioned the United States District Court for a writ of habeas corpus. The Seventh Circuit affirmed the denial, 727 F.2d 1112 (7th Cir. 1984), and the United States Supreme Court denied certiorari, 469 U.S. 930, 105 S. Ct. 324 (1984). In 1992, Robinson sought and was denied post-conviction relief from the Illinois Appellate Court. In February 1993, the Illinois Supreme Court denied Robinson's petition for leave to appeal his cause of action. In July 1993, petitioner filed his second petition for writ of a habeas corpus in the United States District Court. This court dismissed counts 1 through 3 of Robinson's petition but granted Robinson leave to amend Count 4 of his petition. Robinson's amended complaint is now before this court. *fn1"

 In his amended complaint, Robinson alleges that the application of day-for-day good conduct credits to his sentence instead of statutory and compensatory good-time credits violates the ex post facto prohibition of the United States Constitution. U.S. CONST. art. I, § 10. At the time Robinson committed the offense for which he is now incarcerated, Illinois law authorized a system awarding "statutory and compensatory good-time" credits to inmates. ILL REV. STAT. ch. 38 PP 1003-6-3, 1003-12-5 (1977). After Robinson committed the offense but before his trial and sentencing, the Illinois legislature changed the law to a system of "day-for-day good conduct" credits. ILL. REV. STAT. ch. 38, P 1003-6-3(a)(1) (1978 Supp.). *fn2" Robinson claims that he is harmed by the retroactive application of the law because awarding good conduct credit on a day-for-day basis instead of statutory and compensatory good-time credits results in a longer period of incarceration for him. Thus, Robinson argues that he is entitled to have his good conduct credit recalculated under the statutory and compensatory good-time scheme.

 In response, Respondent contends that Robinson's petition should be dismissed because he has procedurally defaulted his ex post facto claim. Respondent claims that Robinson did not adequately present his ex post facto claim during his state court proceedings and, as a result, he has forfeited his right to bring the claim. Brief for the Respondent, at 3. In the alternative, Respondent asserts that Robinson's petition should be dismissed as an abuse of the writ because Robinson previously has sought habeas corpus relief in the District Court. Finally, Respondent contends that Robinson's ex post facto claim may also properly be denied on its merits.

 II. DISCUSSION

 A. Procedural Default

 Robinson brings his petition pursuant to 28 U.S.C. § 2254, the federal habeas corpus statute for state prisoners. A federal court may entertain a habeas corpus petition only if the petitioner has exhausted all state judicial remedies and presented all claims during the state court proceedings. 28 U.S.C. § 2254; Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988), cert. denied, Henderson v. Greer, 490 U.S. 1009, 109 S. Ct. 1648, 104 L. Ed. 2d 163 (1989). Failure to first present a constitutional claim to the state court operates as waiver or procedural default. Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991); Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990). This "presentment" requirement is intended to preserve principles of federalism and comity by providing the state courts with a fair opportunity to consider and correct the alleged constitutional violations. Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990); Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982).

 To adequately present a claim to the state court, the claim "must have been presented in such a way as to fairly alert the state court to any applicable constitutional grounds for the claim." United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir. 1984). A district court will find that a state court did not have a fair opportunity to consider or correct the alleged constitutional defect where the argument to the state court does not do the following: "(a) rely on pertinent federal cases employing constitutional analysis; (b) rely on state cases employing constitutional analysis in like fact situations; (c) assert[ ] the claim in terms so particular as to call to mind a specific right protected by the Constitution . . . [or] (d) allege a pattern of facts that is well within the mainstream of constitutional litigation." Id. at 454 (quoting Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc)).

 In contrast, Robinson now contests the application of day-for-day good conduct credits to his sentence instead of statutory and compensatory good-time credits. No mention is made in Robinson's present amended complaint of a defect in the original calculation of his sentence. Moreover, Robinson's legal theories behind the two claims are distinct. In Robinson's 1992 post-conviction petition, he alleged that the law in effect at the time of his sentencing should have been applied to determine his sentence. In contrast, Robinson now maintains that the law in effect prior to February 1978 should be applied, i.e., the law in force at the time of his commission of the offense. In essence, Robinson's present position is exactly the opposite of the position he took in his 1992 petition.

 In view of these facts, the court agrees with Respondent that Robinson procedurally defaulted by not fairly presenting his ex post facto claim to the state court. The state court could not be expected to discern an ex post facto claim from the facts as Robinson presented them in his state court petition. Disputing the manner of calculating a convicted defendant's sentence is unrelated to an action alleging that good conduct credits should be awarded according to a different statutory scheme. Although both allegations ultimately claim that the defendant is entitled to spend less time imprisoned, raising the issue of original sentence calculation in a post-conviction brief does not satisfy a defendant's obligation to present a claim regarding good conduct credits to the court to avoid procedurally defaulting that claim. Furthermore, Robinson's claim argued for, not against, retroactive application of the law. No overlap exists between the constitutional analyses required to thoroughly examine both claims. Even though both claims involve the application of the Amendatory Act of 1977 to Robinson, the ...


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