The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Now before the Court is Petitioner, Larry Bailey's ("Bailey"), Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition [#3] is DENIED.
Following a jury trial in the Circuit Court of Peoria County, Illinois, Bailey was convicted of predatory criminal sexual assault, criminal sexual assault, and aggravated criminal sexual abuse. On August 29, 1999, he was sentenced to eight years' imprisonment.
On appeal, the Illinois Appellate Court, Third District vacated Bailey's convictions for criminal sexual assault and aggravated criminal sexual abuse but affirmed his conviction for predatory criminal sexual assault of a child. Bailey filed a Petition for Leave to Appeal to the Illinois Supreme Court, but his petition was denied on May 13, 2002.
On October 19, 2005, Bailey was placed on mandatory supervised release after serving his sentence less the reduction for good time credit. He subsequently violated the terms of his supervised release and was returned to prison.
On March 5, 2003, Bailey filed a motion to reduce his sentence in the Circuit Court for Peoria County. His motion was denied on March 6, 2003. On July 23, 2007, Bailey then filed a state habeas complaint in the Circuit Court for Peoria County arguing that he had served his sentence and should be released. This petition was dismissed on July 31, 2007. On August 24, 2007, Bailey filed a post-conviction petition raising the same claim. The post-conviction petition was dismissed on October 29, 2007. He did not appeal the dismissal of either petition.
Instead, Bailey filed the present Petition for Writ of Habeas Corpus pursuant to § 2254. In this Petition, he raises essentially two claims of error: (1) he was not advised that he would be required to serve a three-year supervised release term after his incarceration, and (2) he was advised that, following revocation and return to prison, he would be required to serve 50%, rather than 85%, of his three-year supervised release term. This Order follows.
Before reaching the merits of a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, a district court must consider "whether the petitioner exhausted all available state remedies and whether the petitioner raised all his federal claims during the course of the state proceedings." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), quoting Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988). If the answer to either of these questions is "no," then the failure to exhaust state remedies or procedural default bars the petition. Id. In other words, if a petitioner fails to give the state courts a full and fair opportunity to review his claims, then his petition must fail. Bocian v. Godinez, 101 F.3d 465, 468-69 (7th Cir. 1996).
Exhaustion of a federal claim occurs when it has been presented to the highest state court for a ruling on the merits or when it could not be brought in state court because a remedy no longer exists when the federal petition is filed. Id. In the present case, Respondent does not argue that Petitioner has failed to exhaust his state remedies.
Procedural default occurs when a claim could have been but was not presented to the state court and cannot, at the time the federal petition is filed, be presented to the state court. Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). This occurs in one of two ways. First, a procedural default may occur when a petitioner fails to pursue each appeal required by state law, Jenkins v. Gramley, 8 F.3d 505, 507-08 (7th Cir. 1993), or when he did not assert the claim raised in the federal habeas petition in the state court system. Resnover, 965 F.2d at 1458-59. The second way in which a petitioner may procedurally default a claim is when a state court disposes of the case on an independent and adequate state law ground, regardless of whether that ground is substantive or procedural. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2553-55 (1991).
Federal review is barred for claims that are procedurally defaulted unless the petitioner can demonstrate cause and prejudice. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1572-73 (1982); Farrell, 939 F.2d at 411. Review in federal court is also possible if a fundamental miscarriage of justice would otherwise occur in that a constitutional error probably resulted in the ...