The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
Before the Court is the Petition for a Writ of Habeas Corpus filed by Petitioner, Cleve Heidelberg, on June 22, 2007 [Doc. 1], the Motion to Dismiss filed by Respondent, John Chambers, on September 27, 2007 [Doc. 11], and the two responses filed by Petitioner on October 15, 2007 [Doc. 13] and October 30, 2007 [Doc. 14], respectively.
For the reasons that follow, the Petition is DISMISSED and the Motion to Dismiss is GRANTED.
Petitioner has been in prison since 1970 having been convicted of attempted armed robbery and murder. He received sentences of 4 2/3 to 14 years and 99 to 175 years for each crime, respectively, to be served concurrently. The pending Petition represents Petitioner's third attempt in seeking federal habeas relief.
Petitioner's first 28 U.S.C. § 2254 Petition, filed in 1997, alleged that his due process rights were violated when the Illinois Prisoner Review Board denied him parole (hereinafter "1997 Petition"). In denying a request for a certificate of appealability, the Seventh Circuit Court of Appeals noted that the Illinois Supreme Court held that the parole statute did not create a legitimate expectation of parole. Heidelberg v. Illinois Prisoner Review Board, 163 F.3d 1025 (7th Cir. 1998). Thus, Petitioner had no liberty interest, and concomitant due process right, in being granted parole. Id.
Petitioner's second habeas petition, again filed pursuant to § 2254, was filed on July 18, 2003 (hereinafter "2003 Petition"). In that Petition, Petitioner attacked his underlying murder conviction by alleging prosecutorial misconduct regarding fingerprint evidence. In addressing the Petition, District Judge Charles R. Norgle, found that this second § 2254 petition was not a "second or successive" petition as the term is used in 28 U.S.C. § 2244. Judge Norgle specifically found that because the 1997 Petition involved a parole issue, it addressed a "judgment" separate from Petitioner's underlying criminal judgment. Thus, the second § 2254 Petition was not a "second or successive" Petition that would require Seventh Circuit approval prior to the filing.
However, Judge Norgle ultimately dismissed the Petition as time-barred.
The pending Petition is also filed pursuant to § 2254. In this Petition, Petitioner argues that he is entitled to a "fixed release date." Petitioner's theory is a little confusing and is as follows: The sentencing court originally sentenced Petitioner to an indeterminate sentence of 4 2/3 to 14 years and 99 to 175 years to be served concurrently. Petitioner maintains that because he is eligible for parole after "20 years less time credit for good behavior," pursuant to 730 Ill. Stat. Ann. § 5/3-3-3(a)(1), his "indeterminate minimum sentence" is in fact 20 years (minus good conduct credit) because the statute "supercedes" the trial court's pronouncement of sentence. Petitioner then goes on to argue that 740 ILL. COMP. STAT. § 5/3-3-2.1,*fn1 which provides that the Prisoner Review Board shall set a fixed release date, should apply to his sentence. Petitioner argues that the Prisoner Review Board must provide him with a fixed release date (which he can then accept in lieu of a parole date). However, when he sought a fixed release date (or parole) in 1981 he was denied because the Prisoner Review Board found that his sentence was in fact "20 years or more" and that it did not have to provide a fixed release date pursuant to § 5/3-3-2.1(b). Petitioner essentially argues that § 5/3-3-2.1(b) does not apply to him because his sentence (which he equates to his parole eligibility term) is less than 20 years. In order to add a constitutional element to his claim, Petitioner then argues that applying § 5/3-3-2.1(b) to his case violates the ex post facto clause as explained in Weaver v. Graham, 450 U.s. 24 (1981). See U.S. CONST. art. I, § 9.*fn2
Respondent has filed a Motion to Dismiss asserting that this third § 2254 Petition constitutes a "second or successive" Petition as governed by § 2244. As such, Petitioner should have received permission from the Seventh Circuit prior to filing the Petition. Respondent argues that Petitioner did not seek permission to file this § 2254 Petition and it should be dismissed.
As noted above, Petitioner was convicted in Illinois state court and seeks release from prison. 28 U.S.C. § 2254 provides that this Court should entertain a Petition for a writ of habeas corpus from an inmate in custody pursuant to a state court judgment only on the ground that he is held in violation of the Constitution or laws of the United States. 28 U.S.C. § 2244(b)(1) provides, however, that a "claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." The code section goes on to provide that a limited number of claims, not previously presented, may be raised in a second or successive petitioner. In order to raise such new claims, 28 U.S.C. § 2244(b)(3)(A) provides that "the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider" a "second or successive application" for a writ of habeas corpus pursuant to § 2254. Therefore, if Petitioner raises a claim that was raised in a previous § 2254 petition, it must be dismissed.
Conversely, if Petitioner raises a new claim, he needs to obtain permission from the Seventh Circuit Court of Appeals prior to filing the claim in this Court. See Burton v. Steward, __ U.S. __, 127 S.Ct. 793, 796 (2007).
Regardless of whether the 1997 Petition or the 2003 Petition is considered, it is clear that this third Petition represents a "second or successive" petition over which this Court does not have jurisdiction. In the 1997 Petition, Petitioner argued that his due process rights were violated when he was denied parole. In a similar vein, Petitioner argues that his constitutional rights were violated as his "fixed release date" has not been set by the Prisoner Review Board. While Petitioner clouds his claim with much verbiage, he is seeking the same relief that he sought in 1996 -- namely, the approval of his release requests. See Brannigan v. United States, 249 F.3d 584, 588 (7th Cir. 2001) (noting that "the principle that new legal arguments about the same events do not amount to a new claim" applies to § 2244). In the 1997 petition, Petitioner asserted that he was entitled to be released on parole because of ...