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TORRES v. McADORY

September 23, 2004.

BRIAN TORRES, Petitioner,
v.
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.

PROCEDURAL BACKGROUND

  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 order.

  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 Court.*fn3

  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 records.

  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 ...


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