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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


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 supervised release.

  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 him.

  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 ...

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