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January 28, 2004.

JOHN E. ZARUBA, Sheriff of DuPage County, Illinois, Respondent and ATTORNEY GENERAL OF THE STATE OF ILLINOIS, Respondent

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


In May 1998, Petitioner, Robert C. Thomas ("Thomas") was convicted in Illinois state court for driving with a revoked driver's license and sentenced to two years' probation. On January 30, 2001, he petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction. The Respondent in this case is John E. Zaruba, the Sheriff of DuPage County, In an earlier order, the court dismissed Thomas's case on the ground that because his 24-month term of probation had expired in mid-2000, he was not in custody when he filed his habeas petition, a requirement under the habeas statute. 28 U.S.C. § 2254. Thomas v. Zaruba, No. 01 C 646, Minute Order of January 1, 2002. Thomas applied to our Court of Appeals for a certificate of appealability. He argued that he remained on probation in January 2001 because back in July 1998, the state had petitioned to revoke his probation due to another driving offense.

In a brief order, the Seventh Circuit noted that Thomas was "correct that his term of probation was tolled until the disposition of the state's petition to revoke." Thomas v. Zaruba, No, 01 C 646, 7th Cir. Order of April 22, 2002, citing 730 ILCS 5/5-6-4; People v. Ryan, Page 2 669 N.E.2d 623, 626 (2nd Dist. 1996). Noting that the record did not reflect the status of the revocation petition, the Seventh Circuit granted the certificate of appealability request, vacated this court's earlier order, and remanded with directions for this court to "(1) determine whether Mr. Thomas was `in custody' when he filed his § 2254 petition because the term of his probation was tolled, and (2) if so, make a determination as to the claims Mr. Thomas identified in his [certificate of appealability] application in this court." Id. In July 2002 the court held an evidentiary hearing on the issue of Thomas's status on January 30, 2001. Once again, the court concludes that Thomas was not in custody for purposes of habeas corpus when he filed his petition.


  On May 28, 1995, Thomas was indicted in DuPage County for the felony of Driving While License Revoked, an offense he committed on December 14, 1994. Almost three years after the indictment, the case went to trial on May 5, 1998 in Judge Ann Jorgenson's courtroom and a jury found Thomas guilty. He was sentenced on June 30, 1998 to thirty days work release, a $3,000 fine, and two years of probation. (Petitioner's Brief to the Illinois Appellate Court (hereinafter "App. Brief), Ex. 8 to Petitioner's Memorandum of Points and Authorities, at 10-11.)

  Under the terms of his probation, Thomas was required to obey all state, federal and local laws; immediately notify his probation officer if arrested; report to his probation officer as frequently as directed; permit his probation officer to visit him in his home or elsewhere, and be cooperative and truthful with his probation officer; inform his probation officer in writing, within seven days, of any change in employment or place of residence; obtain written permission from his probation officer to leave the State of Illinois; appear before the court in person as directed by his probation officer or the court; work at a lawful occupation and support his dependents; refrain from possessing firearms or other dangerous weapons; pay a probation fee of $25.00 per month; pay all fines, costs, fees, penalties and restitution in full not less than sixty days before the end of Page 3 probation in equal monthly installments; undergo random urinalysis; promptly undertake evaluations as determined appropriate by the probation department and thereafter complete therapy, counseling, or other treatment as ordered by the probation department; complete 100 hours of public service as arranged through the Probation Department; and make a final report to the court on June 29, 2000. (Conditions of Probation, Ex. 1 to Thomas's Brief on the Status of Petition to Revoke Probation, hereinafter "Conditions of Probation.")

  On June 30, 1998, the same day of his sentencing for the 1995 offense, Thomas was again stopped for driving with a revoked license. Based on this arrest, as well as Thomas' failure to report for periodic imprisonment, and a failure to surrender to work release, on July 16, 1998, the state filed a petition to revoke his probation. The state filed a supplemental petition on September 3, 1998, alleging that Thomas had reported for work release with alcohol on his breath and had refused to provide breath samples. On June 29, 2000, the state filed a third petition to revoke Thomas' probation, this time citing his failure to perform court-ordered community service. (Testimony of Assistant State's Attorney David Johnston (hereinafter "Johnston Testimony") at Evidentiary Hearing of July 11, 2002.)

  More than three years passed before the trial court heard arguments regarding the state's first petition to revoke Thomas's probation. In the meantime, on August 4, 1998, Judge Jorgenson issued an order, pursuant to a motion filed by Thomas, stating that Thomas was to begin serving his sentence of 30 days periodic imprisonment that day, and continuing the petition to revoke for a hearing on September 17, 1998. (Copy of Court Order of August 4, 1998, Submitted by Respondent During July 11, 2002 Hearing.) During this court's July 2002 hearing, Respondent presented evidence of numerous further continuances granted by Judge Jorgenson in the matter of the petition to revoke Thomas's probation: Specifically, the court entered orders continuing the matter on September 23, 1998; October 29, 1998; December 3, 1998; December 16, 1998, March 4, 1999; January 27, 2000; February 1, 2000, February 7, 2000; February 28, 2000; April 10, Page 4 2000; April 28, 2000; October 24, 2000, December 12, 2000; and December 20, 2000. Thomas himself sought the March 4, 1999 continuance, and every continuance granted after February 2000. (Johnston Testimony; Copies of Orders Submitted by Respondent on July 11, 2002; Thomas's Brief submitted to the Appellate Court of Illinois (date unknown), at 12, Thomas's Ex. 8.) The record shows, further, that the court granted several extensions of the hearing date beyond February 27, 2001, all but one of which were granted pursuant to motions filed by Thomas. (Johnston Testimony.) At the July 2002 hearing before this court, Thomas argued that the orders issued by Judge Jorgenson alone were not sufficient by themselves to explain the causes for the delays in the case or to identify which party was responsible for the delays. This court granted leave to file transcripts of the proceedings before Judge Jorgenson, but Thomas has to date not done so.

  The hearing on the petition to revoke Thomas's probation was finally held on October 26, 2001. (Johnston Testimony.) Assistant State's Attorney David Johnston elected to proceed only on the first petition to revoke, the one filed on July 16, 1998, based on Thomas's arrest for driving with a revoked license, his failure to report for periodic imprisonment, and his failure to surrender for work release. Johnston explained that, in his view, the evidence that Thomas arrived intoxicated for work release (the basis for the September 3, 1999 petition) was not reliable. Johnston intended to use the third petition to revoke based on Thomas's failure to comply with his public service requirement (the June 29, 2000 petition) at Thomas's sentencing, if the court granted the July 1998 petition to revoke, as Johnston assumed it would. (Johnston Testimony.) In fact, the court did find Thomas to be in violation of his probation and set his sentencing for December 13, 2001. (Id.) This court is unaware whether Thomas's sentencing has yet taken place. Thomas filed at least six motions to continue that sentencing date, and according to the most recent order this court has seen, the date for sentencing was set for September 6, 2002. (Id.) On January 22, 2002, Johnston was transferred to another courtroom and is no longer assigned Page 5 to Thomas's case. The court has no information about the state's intentions with regard to Thomas's revocation of probation, but Johnston declared if he did retain control over the matter, he would recommend sentencing Thomas to the Department of Corrections. (Johnston Testimony.)

  Regarding Thomas's status on January 30, 2001, Johnston testified that until a court order is signed releasing an individual from probation, that individual remains on probation. (Johnston Testimony.) Johnston acknowledged that, to his knowledge, Thomas was never released from probation by the court, and therefore Johnston believed that he was probably on probation in January 2001. (Id.)

  Two other witnesses appeared at the July 11, 2002 hearing, both of whom were called by the Respondent: Thomas's probation officer of two years, John Mains, and Thomas's probation officer in charge of his community service requirements, Heather McCurry. Mains testified that he took over Thomas's case file in June or July 2000. At that time, Thomas was required to report to the probation office once per month, and was subject to "the statutory requirements of probation."*fn1 (Mains Testimony.) Mains also testified, however, that during a court date in November 2000, Judge Jorgenson asked Mains whether he thought it would be beneficial for Thomas to continue reporting to him, and Mains replied that "he didn't feel it was at issue." (Id.) Judge Jorgenson indicated that if it was not fruitful, Thomas need not continue reporting to Mains. Shortly after Judge Jorgenson's decision, Mains orally informed Thomas that he no longer needed to report to him. (Id.) From November 2000 until approximately January 2002, when Thomas called Mains regarding Thomas's travel plans, Mains did not speak to Thomas, nor did he supervise or impose any restrictions on Thomas's behavior. (Id.) Mains nevertheless testified that in his view, Thomas remained subject to the conditions of probation, though he did not describe how, if at all, those Page 6 conditions were enforced.

  On one occasion when this court was scheduling a court date in this matter, Thomas informed the court that he would be out of town from November 22 through December 7, 2001. (Transcript of Proceedings, Case No. 01 C 646, November 20, 2001.) When the court asked Thomas where he was going, he replied that he had plans to vacation in Italy. (Id.)

  Mains testified that about six months before the July 2002 hearing (in approximately January 2002), he spoke to Thomas on the phone about a trip Thomas planned to make to Italy.*fn2 Mains informed Thomas that he was not in a position to grant him allowance to travel abroad, and that Thomas needed to obtain court permission because of the pending petition to revoke his probation.*fn3 (Mains Testimony.) Mains was unaware of whether Thomas subsequently asked permission of the court to leave the country, and the two never conversed on the subject again. (Mains Testimony.) Thomas presented no evidence that he ever sought leave of court to travel abroad.

  Heather McCurry, Thomas's probation officer for community service, testified that Thomas had failed to complete the required 100 hours of community service to which he was sentenced. (McCurry Testimony.) She noted a report submitted to Judge Jorgenson on June 29, 2000, indicating that Thomas never reported to the work site to which he was originally assigned on July 9, 1998. After being reassigned to a different worksite in June 1999, Thomas failed to report to that site as well, and worked zero of the required 100 hours. Numerous letters were sent and phone calls made to Thomas, but Thomas did not respond, (Id.) On June 26, 2000, Thomas went to his worksite and dropped off a paper he had written on the topic of aging, which he apparently Page 7 believed would garner him the necessary credit to satisfy the public service requirement, (Id.) McCurry described the worksite as "unique," one where the probation officers tried to cater to Thomas's special skills as an attorney.*fn4 The paper was not, in fact, approved by ...

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