United States District Court, N.D. Illinois, Eastern Division
September 24, 2004.
United States ex rel. JAMES PORM, Petitioner,
JAY MERCHANT, Warden Respondent.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner James Porm, a prisoner in the custody of the
Illinois Department of Corrections incarcerated at Vienna
Correctional Center, was convicted of attempt aggravated robbery
by the Circuit Court of Cook County, Illinois, on May 24, 2001,
following a negotiated guilty plea and sentenced to ten years'
imprisonment. This pro se petition for habeas corpus under
28 U.S.C. § 2254 challenges the three-year period of supervised
release that will follow petitioner's release from prison.
Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts requires the court to review the petition
and its exhibits before ordering a response. The court may
summarily dismiss the petition if it plainly appears that the
petitioner is not entitled to relief. Small v. Endicott,
998 F.2d 411, 414 (7th Cir. 1993).
Petitioner did not appeal his conviction or sentence.
Petitioner states that he filed a petition for post-conviction
relief in the Circuit Court of Cook County on April 27, 2004,
raising the claim asserted in his habeas petition.*fn1 The
Circuit Court relief on May 27, 2004, and petitioner's appeal to
the Illinois Appellate Court, First District, is currently
pending. According to publicly-accessible IDOC records,
petitioner is currently scheduled to be released from prison on
March 27, 2005, when he will enter upon the three-year period of
A federal court may not grant a writ of habeas corpus unless
"it appears that the applicant has exhausted the remedies
available in the courts of the State, or that there is either an
absence of available State corrective process or the existence of
circumstances rendering such process ineffective to protect the
rights of the prisoner." 28 U.S.C. § 2254(b)(1)(A), (B). Although
petitioner's pending appeal is prima facie evidence that he has
an unexhausted, available, state-court remedy, petitioner claims
the First District Appellate Court rejected his position in a
prior opinion, rendering his appeal futile. For the following
reasons, the court declines to entertain the petition.
Under Illinois law, every prison sentence, except a sentence of
natural life, carries with it, "as though written therein," an
additional term of mandatory supervised release, which we will
refer to as "MSR." 730 ILCS 5/5-8-1(d). Petitioner states, and at
this stage we accept as true, that at his plea hearing he was not
admonished that his 10-year sentence for a Class X-level felony
would entail a three-year MSR term. Petitioner asserts that the
sentence he agreed to serve did not include the MSR term, and
asks the court to enforce the bargain he made. Although at one
point petitioner states that he "did not plead guilty with full
knowledge and understanding of the consequences of his plea,"
Pet. at 5(c), he unequivocally states that "Petitioner does not
seek to withdraw or otherwise invalidate his guilty plea." Pet.
at 5(h) (emphasis in original). Rather, petitioner seeks specific
enforcement of the plea agreement.
Petitioner asserts that this court may grant the relief he
seeks and amputate the MSR term from his sentence, citing U.S.
ex rel. Russo v. Attorney General of Illinois, 780 F.2d 712, 719
(7th Cir. 1986), holding that when fundamental fairness requires
it, a federal court may strike a petitioner's mandatory
supervised release term "so that his sentence comports with the
bargain he made." Petitioner claims, however, that People v.
Russell, 345 Ill.App.3d 16, 21-23, 801 N.E.2d 977, 982-83 (1st
Dist. 2003), precludes such relief in the Illinois courts.
The Appellate Court in Russell reversed the summary dismissal
of a post-conviction petition alleging that the defendant had
been denied due process in pleading guilty because the trial
court failed to admonish him, as required by Illinois Supreme
Court Rule 402, that he would be required to serve a 2-year MSR
term in addition to his negotiated 14-year prison term. The
Appellate Court noted that "the mere failure of the trial court
to explain the mandatory supervised release term prior to
accepting a guilty plea does not, per se, render the plea
agreement constitutionally infirm." Russell,
345 Ill.App.3d at 19, 801 N.E.2d at 980 (quoting People v. Smith,
285 Ill.App.3d 666, 669, 676 N.E.2d 224
(1st Dist. 1996)). Rather, to establish a due-process violation,
three conditions must be met: (1) the record must establish that the court informed the
defendant he would receive a specific sentence; (2) the defendant
was sentenced to a greater term, taking into account any period
of supervised release; and (3) the defendant raises a good-faith
argument that he would not have pled guilty if he had been fully
and correctly informed by the court of his potential sentence.
Id., 345 Ill.App.3d at 19, 801 N.E.2d at 981 (citing Smith).
Finding that the petition alleged these elements, the Appellate
Court held it should not have been summarily dismissed. Id.,
345 Ill.App.3d at 20-21, 801 N.E.2d at 982.
In remanding the post-conviction petition, the Appellate Court
commented on the defendant's request that his 14-year prison term
be retained and his MSR term stricken, the same relief petitioner
seeks from the Illinois Appellate Court in his pending appeal and
that he seeks here. The court stated that because the MSR term is
a statutory part of any sentence of imprisonment, it may neither
be bargained away by the prosecution nor stricken by the court as
a remedy. If a defendant shows that the failure to advise him of
the MSR term at the time he pleaded guilty was a denial of due
process, the only available remedy is to permit defendant to
withdraw his guilty plea and vacate his sentence. Russell,
345 Ill.App.3d at 22, 801 N.E.2d at 983.
We disagree that the Appellate Court's opinion in Russell
entitles petitioner to seek a writ of habeas corpus from this
court before exhausting his claim in state court, for three
reasons. First, assuming for the moment that Russell squarely
rejected petitioner's position, adverse precedent excuses
exhaustion only when it precludes state courts from considering
a claim, not when it indicates that the claim will be rejected on
the merits. The Supreme Court stated in Duckworth v. Serrano,
454 U.S. 1, 3 (1980), that the exceptions to the exhaustion
requirement apply only "if there is no opportunity to obtain
redress in state court or if the corrective process is so clearly
deficient as to render futile any effort to obtain relief." The
Seventh Circuit understands "corrective process" as referring
only to the state's post-conviction procedure: "[T]he pertinent
question is not whether the state court would be inclined to rule
in the petitioner's favor, but whether there is any available
state procedure for determining the merits of petitioner's
claim." Spreitzer v. Schomig, 219 F.3d 639, 647 (7th Cir.
2000). Consequently, since petitioner can put his claim before
the state courts, he must do so.
As petitioner acknowledges, Illinois courts are required to
obey the Constitution as interpreted by decisions of the United
States Supreme Court. They are not, as he apparently believes,
required to follow decisions of the Seventh Circuit Court of Appeals, or
any other inferior federal court. The exhaustion requirement
preserves comity between state and federal governments. See
Serrano, 454 U.S. at 3-4. The 1996 AEDPA amendments further this
purpose by limiting the scope of federal habeas review to whether
the state courts reasonably applied "clearly established Federal
law, as determined by the Supreme Court of the United States,"
28 U.S.C. § 2254(d), rather than federal law as determined by
inferior federal courts as well. It would undermine this purpose
to permit a petitioner to claim "futility" and shift his claim to
federal court if he finds state-court precedents are adverse to
Second, even assuming that adverse state-court precedent may
excuse exhaustion, only a ruling by the state's highest court
should have that effect. This is consistent with the requirement
that a petitioner challenging a state conviction present his
claims to the state's highest court before seeking federal habeas
review, a requirement that is not excused even if review by the
state's highest court is discretionary. O'Sullivan v. Boerckel,
526 U.S. 838 (1999). See Thompson v. Reivitz, 746 F.2d 397, 401
(7th Cir. 1984); Lynch v. Sandahl, 793 F.Supp. 787, 794
(N.D.Ill. 1992) (Aspen, J.) (federal courts may excuse exhaustion
requirement "where presentation to the state courts would be
futile due to adverse supreme court precedent").
Third, the claim petitioner asserts is not the same claim
addressed in Russell. Petitioner confuses two potential claims.
The first is a claim that failing to inform the defendant of the
MSR term rendered his guilty plea involuntary. A guilty plea must
be knowingly and intelligently made. Voluntariness is determined
by considering all of the relevant circumstances surrounding the
guilty plea. St. Pierre v. Walls, 297 F.3d 617, 634 (7th Cir.
2002) (citing Boykin v. Alabama, 395 U.S. 238, 242-44 (1969),
and Brady v. United States, 397 U.S. 742, 749 (1970). In the
process of accepting the plea the defendant must be made aware of
the consequences of the plea. Id. By analogy to contract law,
the lack of assent to a material term prevents the existence of a
contract. This was the claim asserted in Russell: "that
[defendant's] plea was neither knowing nor voluntary because the
trial court failed to admonish him with respect to the two-year
term of mandatory supervised release." Russell,
345 Ill.App.3d at 18, 801 N.E.2d at 980.
Petitioner here raises a different claim: that he agreed to
plead guilty in exchange for a 10-year prison sentence with no
MSR term. Rather than seeking to void his plea, petitioner
affirms his plea and seeks specific enforcement of the bargain. It may be that
petitioner does not attack the validity of his plea because he
cannot satisfy the third element under Russell and Smith,
that he cannot allege in good faith that he would not have
accepted the bargain had he known of the MSR term. Nevertheless,
under petitioner's theory, he does not have to. One seeking to
enforce a bargain does not have to show he would not have agreed
to receive less than he was promised. Whether petitioner has
stated a constitutional claim, we need not decide.*fn2 It is
enough that it was not considered in Russell.
It appears that Russell does foreclose the relief petitioner
seeks, i.e., vacating the MSR term while leaving the remainder
intact. Russell does not foreclose another form of relief,
shortening the term of incarceration (within statutory limits) so
that the sentence, together with the period of supervised release
following it, does not exceed the bargained-for sentence.
Although this remedy will normally leave a defendant in a better
position than if the MSR term were stricken, it is unclear how
that might apply to petitioner, who is likely to be released from
custody before the state courts issue a final ruling.
Nevertheless, Illinois courts recognize that the United States
Constitution, as interpreted by the United States Supreme Court,
is the supreme law of the land Principles of comity require that
the Illinois courts be given the first opportunity to rule on
petitioner's claim, and should he persuade them that the
Constitution requires him to be resentenced contrary to Illinois
statutes, he will be so resentenced.
As an additional ground for excusing exhaustion, petitioner
asserts he will suffer irreparable harm if his MSR term is not
stricken, because he will be required to give a sample of his
blood, saliva or tissue for DNA testing as a condition of his
release pursuant to 730 ILCS 5/5-4-3(a)(5).*fn3 Petitioner contends that requiring such a sample is an
unreasonable search in violation of the Fourth Amendment.
A constitutional challenge to the collection of samples for DNA
testing, as such, is properly brought in a civil suit under
42 U.S.C. § 1983 rather than a habeas corpus proceeding. The
lawfulness of petitioner's custody is implicated, however,
because disobeying an order to give a sample may result in loss
of "good time" credit and prolong petitioner's custody. However,
if such an order is lawful, petitioner may be lawfully punished
for disobeying it. The Seventh Circuit upheld the
constitutionality of a similar Wisconsin statute in Green v.
Berge, 354 F.3d 675 (7th Cir. 2004), and Judge Reinhard of this
court, following Green, found the Illinois statute
constitutional in Sterson v. Doe, No. 03 C 50053. 2004 WL
1630500 (N.D.Ill. June 2, 2004).
Treated as a claim for habeas relief, this claim is both
unexhausted and meritless. Treated as a reason for excusing
exhaustion, petitioner cannot assert that state-court procedures
are inadequate or ineffective to protect his right to avoid DNA
testing when no such right exists. For the foregoing reasons, the
petition for habeas corpus is dismissed without prejudice for
failure to exhaust state remedies.
IT IS SO ORDERED.