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.
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 ...