United States District Court, N.D. Illinois, Eastern Division
September 23, 2004.
BRIAN TORRES, Petitioner,
EUGENE McADORY, Warden, Menard Correctional Center Respondent.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER*fn1
Before this court is the 28 U.S.C. § 2254 habeas corpus
petition filed by Brian Torres ("Torres" or "Petitioner"). For
the reasons stated below, Torres' habeas petition is DENIED.
Petitioner was originally convicted in Kane County Circuit
Court of one count of murder, two counts of attempt (for
attempting the crime of murder), and two counts of armed
violence. The armed violence counts were vacated, and he was
subsequently required to serve concurrent sentences of 50 years
for the murder count and 30 years for the attempt count. In 1993,
Petitioner's conviction was affirmed on direct appeal to the
Illinois Appellate Court. In 1999, the Illinois Appellate Court granted Petitioner a retrial after
finding that the prosecution had violated his right to due
process of law by failing to disclose that two of its witnesses
were offered release from probation in exchange for their
testimony and by failing to correct the false testimony of one
witness. Before another trial took place, Petitioner pled guilty
to a count of first-degree murder. On remand, Kane County Circuit
Court sentenced him to 25 years in prison. The circuit court
order, dated February 7, 2000, specifically stated that
Petitioner was to be given credit for both the time he spent in
Kane County Jail an amount of 3536 days and the credit
granted him by the Illinois Department of Corrections ("DOC").
Petitioner did not file a direct appeal.
Petitioner did, however, file numerous petitions for
post-conviction relief in Kane and Randolph County Circuit
Courts.*fn2 The main thrust of these petitions is that the
DOC incorrectly calculated the actual prison time he is required
to serve for his 25 year sentence when it failed to grant him the
correct amount of "good conduct credit" for the time he served
under the 50 year voided sentence. Petitioner alleged, in various
motions in various fora, that any revocation of any good conduct
credit received during the service of his void sentence-including
revocation as a result of disciplinary action-was a
misapplication of the February 7, 2000 Kane County Circuit Court
Petitioner filed a request for mandamus on April 24, 2002 in
the Randolph County Circuit Court. Petitioner sought mandamus to
compel defendant Dale Kranawatter, Records Supervisor at the
Menard Correctional Center, to grant him all possible good
conduct credit for the time he served in Kane County Jail from June 4, 1990 to February 7, 2000
under his voided 50 year sentence for first-degree murder. That
petition was dismissed by the Randolph County Circuit Court in
both its original and amended form.
According to Randolph County Circuit Court records, Petitioner
filed an appeal with the Illinois Appellate Court. The Appellate
Court agreed to hear his claim. Petitioner, however, did not
continue with his case. On October 16, 2002, the Appellate Court
ordered Petitioner to show cause for his failure to prosecute the
case. Petitioner did not respond. On November 1, 2002, the
Appellate Court issued an order dismissing Petitioner's appeal
for want of prosecution. Petitioner did not contest the dismissal
in any way, nor did he file another request for mandamus,
according to the records before this Court. He explains that he
did not pursue his appeal because he lost his case in the Circuit
Petitioner did, however, pursue various other forms of
post-conviction relief. He filed three other actions in Randolph
County Circuit Court. In one of the cases, he sued Jonathan
Walls, warden at Menard Correctional Center. After losing at the
Circuit Court level, he petitioned the Appellate Court. His brief
was stricken for lack of proof of service, and his appeal
dismissed for want of prosecution for failure to file a brief in
accordance with supreme court rules. The Illinois Supreme Court denied review. See Torres v.
Walls, 786 N.E.2d 201 (Ill., 2002).
Petitioner also filed petitions for post-conviction relief in
Kane County Circuit Court. According to Torres' habeas petition
before this court, one post-conviction petition he filed in Kane
County Circuit Court was resolved on August 17, 2001. The August
17, 2001 order stated that the original sentence should be
considered void but "[c]redit for time, however, served on the
first original sentence shall be credited in TOTAL to the
defendant on his 2-7-00 sentence." Torres' habeas petition also
states that another he filed a post-conviction petition in Kane
County Circuit Court on a claim that the DOC violated the Kane
County Circuit Court's previous orders regarding his sentencing.
The records before this court do not indicate how the claim in
that petition, filed November 13, 2001, was resolved. Presumably
whatever resolution occurred did not satisfy Petitioner: he filed
a writ of habeas corpus in Kane County Circuit Court as recently
as January 30, 2003, according to the Kane County Circuit court
On July 3, 2003 Petitioner agreed to a Kane County Circuit
Court order stating that the February 7, 2000 order was a valid
court order and withdrew his petition for post-conviction relief.
Petitioner did not, however, withdraw from litigating in Kane
County Circuit Court. Based on the record before the Court, it
appears that he later requested mittimus, requested
reconsideration, and completed a motion for transfer of his case
to the civil division.
Petitioner filed his petition for habeas corpus relief in this
court on December 6, 2002.
HABEAS CORPUS STANDARDS
A writ of habeas corpus remedies a situation where a petitioner
is held "in custody in violation of the Constitution or laws or
treaties of the United States." Coleman v. Thompson, 501 U.S. 722, 730 (1991). Before a federal court can reach the
merits of a petition for a writ of habeas corpus under
22 U.S.C. § 2254, however, the petitioner must exhaust available state
court remedies. Habeas corpus petitioners exhaust all of their
state court remedies when: (1) they present them to the highest
court of the state; or (2) no state remedies remain available to
the petitioner at the time that the petition is filed. See
Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991).
The exhaustion requirement both minimizes friction between
state and federal systems of justice and allows state courts to
become familiar with and hospitable towards federal
constitutional issues. See U.S.A. ex rel. Johnson v.
McGinnis, 734 F.2d 1193, 1200 (7th Cir. 1984). While
exhaustion does not require a prisoner to file repetitious
applications in the state courts see e.g. Wilwording v.
Swenson, 404 U.S. 249, 250 (1971) a petitioner who fails to
follow proper state procedure when litigating her claim may, in
certain circumstances, be viewed as having failed to exhaust.
See Wallace v. Duckworth, 778 F.2d 1215, 1223 (7th Cir.
1985) ("The exhaustion rule is a rule of comity which recognizes
that, while it is necessary for the federal courts to be
available to protect the rights of state prisoners, it is also
necessary that state courts be permitted to function without
Petitioners are expected to present their claims "in a
procedurally proper manner according to the rules of the state
courts." Duckworth, 778 F.2d at 1223; citing Carter v.
Estelle, 677 F.2d 427, 443 (5th Cir.), affirmed on
rehearing, 691 F.2d 677 (5th Cir. 1982), cert denied,
460 U.S. 1056 (1983).*fn4 The Court decides whether petitioners using improper procedure
have exhausted their remedies on a case-by-case basis. See
Duckworth, 778 F.2d at 1224.*fn5
Even where a federal court reaches the merits of a petitioner's
claim, relief is only warranted in certain circumstances. To
prevail, a habeas corpus petitioner must show that adjudication
of the case resulted in a decision that was: (1) contrary to, or
(2) an unreasonable application of clearly established federal
law as determined by the United States Supreme Court; or, (3)
based on an unreasonable interpretation of the facts in light of
the evidence presented in the state-court proceedings.
28 U.S.C. § 2254(d). The first ground pertains to pure questions of law.
See Lindh v. Murphy, 96 F.3d 856, 868-69 (7th Cir. 1996),
rev'd on other grounds, 521 U.S. 320 (1997). The second ground
pertains to mixed questions of law and fact. Id. at 870. To
warrant relief, the state-court error must be "grave enough to be
called `unreasonable.'" Id. A state-court conclusion will stand
if it is "one of several equally plausible outcomes." Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997). A state court's
application of Supreme Court precedent is reasonable if it is "at
least minimally consistent with the facts and circumstances of
the case." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997).
Finally, the third ground contemplates relief only where the
facts are, by "clear and convincing evidence," demonstrably
wrong. See 28 U.S.C. § 2254(e)(1).
Torres' petition proffers three grounds for relief. The first
ground is that the state appellate court violated the Fourteenth
Amendment of the U.S. Constitution when it denied him a copy of
his brief and then dismissed his appeal for failing to serve the
state Attorney General with a copy of the aforementioned brief.
Grounds two and three of Torres' petition both center on the
alleged miscalculation of his sentence by the Department of
Corrections. In ground two, Petitioner argues that he is entitled
to "immunity from punishment." The alleged punishment in question
is DOC's revocation of some of the good conduct credits it
granted him while he was serving his initial, now void, sentence.
In ground three, Petitioner again argues that he is entitled to
the maximum possible good conduct credits for the time served
under his void sentence and claims that he has satisfied the
sentence imposed upon him.
A. Denial of Fourteenth Amendment Rights (Ground 1)
Petitioner alleges that he was denied rights guaranteed to him
under the Fourteenth Amendment presumably of the U.S.
Constitution when an appellate court in one of his
post-conviction proceedings did not provide him with a copy of
his briefs to serve on the Illinois Attorney General and then dismissed his case for want of
prosecution.*fn6 Petitioner has exhausted his state court
remedies on this claim, having been denied relief by the Illinois
Petitioner is alleging that the appellate court's refusal to
give him a copy of his brief is in violation of the Constitution.
His claim is without merit. Petitioner cites Griffin v.
Illinois, 351 U.S. 12 (1956), a U.S. Supreme Court decision
dealing with access to transcripts of trial proceedings in
support of his position. His reliance on Griffin is misplaced,
however, given that he asked the appellate court not for a
transcript of earlier trial proceedings but rather for a copy of
a document that he himself had submitted to the court.
Numerous cases have noted that prisoners do not have a
constitutional right to unlimited photocopies. See, e.g.,
Jones v. Franzen, 697 F.2d 801, 803 (7th Cir. 1983)
(noting, "broad as the constitutional concept of liberty is, it
does not include the right to xerox."); Dugan v. Peters 1994 WL
91954, at *1 (N.D.Ill., Mar. 17, 1994) ("[a]s a general rule,
however, inmates have no constitutional right to photocopy
services." (citations omitted)); Larson v. Frossard 1987 WL
6284, at *2-3 (N.D.Ill., Jan. 30, 1987); Armstrong v. Lane
771 F.Supp. 943, 948 (C.D.Ill., 1991) ("[t]he Seventh Circuit Court
of Appeals has repeatedly held that inmates are not necessarily
entitled to free photocopies." (citations omitted)). Courts are under no obligation to entertain a demand for
photocopies of a complaint when the petitioner chooses to file
his only copy of his brief with the court.*fn7 Petitioner,
no stranger to litigation, could have reasonably foreseen that
his opponents would need a copy of his brief.*fn8
Furthermore, even if Petitioner had limited access or no access
to a photocopy machine, there is nothing in the record to suggest
that he could not have made handwritten copies of his brief
before filing it. See Turner-El v. West, 811 N.E.2d 728, 735
(Ill.App. Ct. 2003) (noting, "[t]he plaintiff has legible
handwriting and clearly has a great deal of time on his hands.
There is no reason he cannot create conformed copies of his
original pleadings."). This Court can certainly imagine
situations where a lack of access to a photocopy machine would
effectively impede a petitioner's access to the judicial system,
but petitioner does not present such a situation given that he
chose to file his only copy of a brief with the court in an
appeal that he instituted.
This Court finds that the state court conclusion is consistent
with and a reasonable application of federal law. Petitioner's
claim is denied.
B. Sentencing Miscalculation Challenges (Grounds 2 & 3)
Petitioner has strenuously argued that he cannot be denied good
conduct credits for disciplinary violations that occurred while
he was serving his initial, now-voided, 50 year sentence. In both
grounds two and three, he claims that because he was serving a
voided sentence, he should be granted all possible good conduct credit
for that time period and denied none. Petitioner's argument can
be construed as alleging that the Department of Corrections
failed to follow its own regulations when calculating his 25 year
sentence by granting him the maximum amount of good conduct
credit possible for the time he served under his now-void
sentence and then revoking a portion of it for disciplinary
violations that occurred during that time. The second and third
grounds for relief set forth in Torres' habeas petition can be
disposed on the same ground: a failure to exhaust.
Petitioner alleges in his habeas petition grounds two and three
have been presented to the Illinois Supreme Court. But the fact
that a ground for relief has been presented in some form to the
Illinois Supreme Court is not always enough: a failure to follow
the state's established procedure when presenting an argument can
also constitute a failure to exhaust. See e.g., Wallace v.
Duckworth, 778 F.2d 1215.
The Seventh Circuit has held that "[a] petition for a writ of
mandamus in state court must be exhausted where that procedure
was designed to protect the rights asserted." Toney v. Franzen,
687 F.2d 1016, 1021 (7th Cir. 1982). In Illinois, mandamus
"is an appropriate remedy to compel the Department of Corrections
to follow its own regulations." Rogers v. Prisoner Review
Board, 537 N.E.2d 1106, 1108 (Ill.App. Ct. 1989). The Seventh
Circuit has noted, "[u]nder Illinois law, mandamus is clearly the
appropriate procedure to compel the Department of Corrections to
set petitioner's mandatory release date in accordance with the
law." Toney v. Franzen, 687 F.2d 1016, 1021 (quoting People
ex. rel Abner v. Kinney, 195 N.E.2d 651 (Ill.App. Ct. 1964)).
Cf. United States ex. rel. Johnson v. McGinnis, 734 F.2d 1193
(7th Cir. 1984) (requiring exhaustion of the mandamus remedy
in the parole denial context). Petitioner did not comply with the state procedural scheme. He
did initially file a request for mandamus in the Randolph County
Circuit Court in April 2002. He later amended that complaint. On
July 15, 2002, he lost in the Circuit Court. He then filed an
appeal with the Illinois Appellate Court. The Appellate Court
agreed to hear his appeal, providing him with a forum to express
his disagreement with the lower court's ruling. But rather than
following the established procedure for contesting an unfavorable
decision, Petitioner opted to abandon both his pending appeal and
his pursuit of mandamus. The appellate court warned Petitioner on
October 16, 2002 that he was failing to prosecute his case, and
then dismissed the case on November 1, 2002. Petitioner argues
now that a reason he did not follow through with his appeal is
that both the assistant attorney general and the circuit court
led him to believe that mandamus was not the appropriate remedy.
This argument is without merit. Petitioner was aware of the
appellate procedure and could have followed through with his
Rather than pursuing mandamus, Petitioner opted to file for
other forms of post-conviction relief in state court; he
continues to do so today. But Petitioner's exuberance in filing
cannot compensate for his failure to follow proper,
well-established procedure. While procedural rules may at times
be cumbersome and complex, they have not hindered Petitioner in
his pursuit of relief in this case: he has filed at least one
request for mandamus and multiple requests for state appellate
review. Undoubtedly, delays in case resolution can be frustrating
to litigants. But requiring Petitioner to return to state court
to fully litigate his state claims cannot be considered a cause
of unreasonable delay, given that at least some delay in the
resolution of Petitioner's claim can be attributed to his
abandonment of mandamus relief. Petitioner's procedural mistake
is not minor, nor is he without an avenue of appeal.*fn9 The
doctrine of comity requires Petitioner to exhaust his state
Petitioner has not fully litigated his request for mandamus in
the Illinois state court system and therefore has not exhausted
his state court remedies. Given that he has not fully exhausted,
this Court will not decide the merits of his sentencing claims.
For the foregoing reasons, Torres' petition for habeas corpus
relief is DENIED. While his motion to substitute Eugene McAdory
as respondent [33-1] is GRANTED, all other motions related to
this case are MOOT and terminated. Petitioner's motion for
summary judgment [10-1]; Respondent's motion to dismiss
petitioner's petition for writ of habeas corpus for failure to
exhaust state court remedies [19-1]; Petitioner's motion to take
judicial notice [25-1]; Petitioner's motions to take judicial
notice, set hearing date and issue subpoenas [26-1]; Petitioner's
rule 60 motion for relief from the Kane County Circuit Court
Order of 4/18/91 [27-1]; Petitioner's motion for voluntary
dismissal [28-1]; Petitioner's motion to strike plaintiff's
motion for voluntary dismissal [29-1]; Petitioner's motion for
partial summary judgment [31-1]; Petitioner's motion for relief
from a void judgment [34-1]; Petitioner's motion to set a date by
which time respondent must respond to petitioner's motion for
relief from a void judgment [35-1]; Petitioner's motion to
explain to this Court available state court remedies and to clarify available
state court mandamus remedy [36-1]; Petitioner's motion to set
date by which time Respondent is to explain how Petitioner has
available state court mandamus remedy in light of prison rules
[36-2]; Petitioner's motion for proposed order to show cause
[37-1], Petitioner's motion for temporary restraining order
[37-2]; Petitioner's motion to strike respondents sur-reply;
Petitioner's motion to strike respondent's sur-reply [38-1] and
Petitioner's motion to compel respondent to address petitioner's
claim of entitlement [38-2] are ALL DENIED as MOOT. Any and all
other pending motions are MOOT. This action is CLOSED.