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Hill v. McCann

December 19, 2006

WILLIAM RODERICK HILL, PETITIONER,
v.
TERRY MCCANN*FN1, RESPONDENT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM and ORDER

I. Introduction and Background

Pending before the Court is a Report and Recommendation ("the Report') submitted by Magistrate Judge Frazier on July 17, 2006 pursuant to 28 U.S.C. § 636(b)(1)(B) (Doc. 48). The Report recommends that this Court deny Hill's § 2254 petition and dismiss with prejudice his claims as they are in procedural default. On August 3, 2006, Hill, through court appointed counsel, filed objections to the Report (Doc. 49). Based on the following, the Court rejects Hill's objections and adopts the Report in its entirety.

On August 30, 2004, William Hill, a prisoner currently incarcerated at the Tamms Correctional Center, pro se, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 to challenge revocation of good conduct credit (Doc. 1). Thereafter, Hill filed an amended petition on November 16, 2004 (Doc. 4). On August 1, 2005, Magistrate Judge Frazier appointed the Southern District of Illinois Public Defender, Phillip Kavanaugh, to represent Hill in this matter (Doc. 23). Subsequently, Hill, through appointed counsel, filed a supplement to his petition (Doc. 38). On July 17, 2006, Magistrate Judge Frazier issued the Report (Doc. 48).

The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" within ten days of service of the Report. Hill filed timely objections to the Report (Doc. 49). Since objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P.72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id. Hill objects to the Report arguing that had the state courts liberally construed his claims, he would have set forth due process allegations which would have not been subject to procedural default (Doc. 49).

II. Facts

As noted in the Report, the material facts are not in dispute. Hill has been incarcerated since 1975 for committing two murders. Originally, Hill was sentenced to death, however, his conviction was overturned in 1980. Thereafter, Hill pled guilty and was sentenced to two consecutive 30-90 year indeterminate sentences.

The case at bar arises from Hill's conduct at Stateville Correctional Center in 2000. He received eleven disciplinary reports for violating prison rules mostly accusing him of smuggling drugs and drug paraphernalia. On November 6, 2000, following a hearing before the Adjustment Committee at Tamms, the director of the Illinois Department of Corrections revoked eleven years of accrued good time credits. As a result of the disciplinary action, Hill's projected maximum sentence was extended to November 24, 2024.

On June 7, 2001, petitioner filed a pro se "Petition for Declaratory Judgment, Mandamus and Habeas Corpus Relief" in the Circuit Court of Alexander County to challenge the disciplinary actions (Doc. 11, Exhibit A). In this petition for declaratory judgment, Hill raised three claims: (a) due process violations based on a failure to hold a hearing and the taking of wrongful action against petitioner; (b) violations of state statutes and failure to follow department regulations; and (c) violation of department rules regarding adequate adjustment committee summaries (Doc. 11, Exhibit A). On September 24, 2001, the Circuit Court of Alexander County dismissed the action for: (a) failure to state a claim for declaratory judgment; (b) failure to state a claim for mandamus relief; (c) failure to state a claim for habeas relief; and (d) filing a frivolous complaint (Doc. 11, Exhibit B). Hill appealed to the Illinois Appellate Court, Fifth District. In that appeal, Hill raised one issue: whether his pleadings established that there were a set of facts entitling him to release, expungement and declaratory judgment (Doc. 11, Exhibit C). The Appellate Court affirmed the Circuit Court's decision in its entirety, finding that Hill failed to state a proper claim for which he sought relief (Doc. 11, Exhibit F). On December 2, 2002, Hill filed a petition for leave to appeal with the Illinois Supreme Court (Doc. 11, Exhibit G). The petition for leave to appeal alleged that the Illinois Appellate court erred in affirming the Circuit Court's action without a hearing. On February 5, 2003, the Illinois Supreme Court denied the petition for leave to appeal (Doc. 11, Exhibit H).

Thereafter, Hill filed a motion for certiorari relief in the Circuit Court of Alexander County relating to the loss of good-conduct credits (Doc. 11, Exhibit M). On December 19, 2002, the trial court found that the action was barred by res judicata because all issues were or could have been raised in Hill's previous action, and dismissed his petition with prejudice (Doc. 11, Exhibit I). Hill appealed that decision raising one issue: whether the Circuit Court erred in finding that his petition was barred by res judicata (Doc. 11, Exhibit J). The Illinois Appellate Court affirmed the Circuit Court's decision (Doc. 11, Exhibit M). On January 30, 2004, petitioner filed a petition for leave to appeal the Illinois Supreme Court (Doc. 11, Exhibit N). In the petition for leave to appeal, Hill alleged that the Illinois Appellate Court erred in affirming the Circuit Court's decision. On March 24, 2004, the Illinois Supreme Court denied the petition for leave to appeal (Doc. 11, Exhibit N).

On November 16, 2004, petitioner filed an amended petition for habeas relief in this Court (Doc. 4). Subsequently, Hill filed a supplemental petition (Doc. 38). Hill claims that his due process rights were violated in that he was not given advanced notice of the accusations, not given an opportunity to defend the charges by presenting witnesses and not given a well supported decision by a fair and unbiased tribunal.

III. Analysis

The Anti-Terrorism and Death Penalty Act of 1996 ("AEDPA") allows a district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Before considering the merits of a habeas petition, a federal court must ensure that the petitioner has exhausted all available state remedies and fairly presented all of the claims in his habeas petition to the state courts. Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004); Spreitzer v. Schomig, 219 F.3d 639, 644 (7th Cir. 2000). "Federal habeas relief is available only when a petitioner has given the state courts a full and fair opportunity to review a claim, when there is cause and prejudice for the failure to raise the claim in state court or when the default would lead to a fundamental miscarriage of justice." Steward v. Gilmore, 80F.3d 1205, 1211 (7th Cir. 1996) (citations omitted).

To avoid default, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Illinois, "one complete round" of appellate review includes appellate court review as well as a petition for discretionary review in the Illinois Supreme Court. Id. The Seventh Circuit has held that the Boerckelprocedural default rule "applies ...


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