The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Before the Court is Petitioner Cedric Dupree's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Motion to Dismiss for Failure to Exhaust [#11] is GRANTED, and Petition [#3] is DISMISSED. Dupree's Motion for Evidentiary Hearing [#17] also is DISMISSED as moot.
Cedric Dupree currently is serving a ten-year sentence for theft and a five-year sentence for false impersonation of a police officer. Dupree is incarcerated at the Pontiac Correctional Center in Pontiac, Illinois, and is in the custody of Warden Eddie Jones.
Between March 2003 and the present, Dupree alleges that the Pontiac Correctional Center Adjustment Committee revoked eighty-six months of good conduct credits. Dupree alleges that he properly filed grievances with the Administrative Review Board, and that the revocations were affirmed. If not for these revocations, Dupree contends that he served his complete sentence.
Dupree states that he declined to file a petition for order of mandamus in the Illinois Circuit Court for Livingston County because "those courts are so flawed it would make my efforts meaningless." Pet. at 2-C. Dupree alleges that one judge in Livingston County "won't recluse [sic] himself and rule on cases I filed with him as an [sic] defendant." Pet. at 2-B. He also claims that the clerk of the Livingston County Circuit Court "has an illegal docketing scheme where she combines cases with newly filed cases"; "does not send record/notice of the proceedings to inmates and try [sic] to discourage/sabotage our filings with lies"; and "scratches out defendants she's personal with." Pet. at 2-B.
Instead of filing in the circuit court, Dupree filed a motion for leave to file a petition for writ of habeas corpus in the Supreme Court of Illinois. The Illinois Supreme Court denied the motion on November 20, 2006, and it denied Dupree's motion for reconsideration on May 25, 2007.
On June 12, 2007, Dupree filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 arguing that he is unlawfully incarcerated in the Pontiac Correctional Center, and that the Illinois Supreme Court erred in denying his motion for leave to file a petition for writ of habeas corpus.
The State argues that the petition should be denied for failure to exhaust state remedies because Dupree did not follow the proper procedure in the Illinois state courts for post-conviction relief. The State argues that although the Illinois Supreme Court can adjudicate a direct petition, that court must grant leave to file before there is a fair presentment of the case. Because the Supreme Court denied leave to file, the State argues that the state courts never adjudicated Dupree's claim.
In his Traverse, Dupree requests that this Court stay his petition until his claim is adjudicated in the state courts if it dismisses the petition for failure to exhaust state remedies.
A. Petition for Writ of Habeas Corpus
Before proceeding to federal court for writ of habeas corpus challenging the deprivation of good-time credits pursuant to 28 U.S.C. § 2254, the petitioner must exhaust adequate and available state remedies. 28 U.S.C. § 2254(b)(1)(A); McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001). The judicial remedy for Illinois prisoners challenging lost good conduct credits is to file a complaint for an order of mandamus from an Illinois circuit court. McAtee, 250 F.3d at 508. If dissatisfied with the outcome in the circuit court, the petitioner "must invoke one complete round of the normal appellate process, including seeking discretionary review before the state supreme court." Id. at 208-09.
Dupree bypassed the standard judicial remedy by filing a motion for leave to file a writ of habeas corpus in the Illinois Supreme Court. Although this is a recognized bypass procedure, the Supreme Court's denial of leave to file "is not an adjudication on the merits and does not preclude the plaintiff from prosecuting an action seeking the same relief in a circuit court" and through the standard appellate process. Crump ...