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United States ex rel Hill v. Montgomery

January 9, 2009

UNITED STATES OF AMERICA EX REL. MICHAEL HILL, PETITIONER,
v.
JESSE MONTGOMERY, RESPONDENT.



The opinion of the court was delivered by: Blanche M. Manning United States District Court Judge

MEMORANDUM AND ORDER

Petitioner Michael Hill's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, Hill's petition is denied.

I. Background

In January of 2001, petitioner Michael Hill (prison identification #R01715) pleaded guilty to first degree murder and was sentenced to a 20 year term of imprisonment. This sentence included a three year period of mandatory supervised release ("MSR"), and the MSR term is the focus of Hill's § 2254 petition. According to Hill's state court filings, he first learned about the MSR portion of his sentence at some point prior to December of 2002 (when he filed his first state post-conviction petition -- which is not in the record provided to the court -- challenging the MSR) or October of 2003 (as reflected in his successive state court post-conviction petition alleging that his prison counselor told him about the MSR on October 24, 2003).

Hill was paroled from the Robinson Correctional Center on October 12, 2007, and is projected to be discharged from parole on October 13, 2010. In his § 2254 petition, Hill states that he is restricted to home confinement and asks the court to find that his MSR term violates due process and Illinois Supreme Court Rule 402, which provides a guilty plea shall not be accepted without the trial court first informing a defendant of minimum and maximum sentences prescribed by law. See Ill. Sup. Ct . R. 402(a)(2).

II. Procedural Posture

On December 12, 2002, Hill filed a state post-conviction petition challenging the MSR term. On November 6, 2003, the state circuit court summarily dismissed the petition as untimely. Hill appealed and on January 14, 2005, the state appellate court vacated the summary dismissal and remanded the case for further proceedings.

In the meantime, while his appeal was pending, Hill filed a second state post-conviction petition alleging that when he pleaded guilty, the court did not advise him that his sentence included a three-year period of MSR, and that if he had known this, he would not have pleaded guilty. On April 17, 2006, the trial court dismissed Hill's second state post-conviction petition. The respondent states that Hill does not seem to have filed an appeal from this decision.

Hill then filed a third action (a mandamus petition filed with the Circuit Court of Cook County) on December 8, 2003, asserting that the trial court failed to admonish him about the three-year MSR term. Ten days later, he filed a motion for leave to file a petition for an original writ of mandamus in the Illinois Supreme Court, again challenging his MSR term. The Illinois Supreme Court denied this motion on March 16, 2004.

After these rulings, the Circuit Court mandamus proceedings and the remanded first state post-conviction petition were still pending. The state court appears to have considered these two cases together, as it held a hearing, during which defense counsel stated that his client did not want to withdraw his guilty plea. Subsequently, on November 2, 2005, the circuit court rejected Hill's arguments about MSR. Hill appealed, repeating his arguments about due process and Illinois Supreme Court Rule 402.

On October 9, 2007, the state appellate court found that it lacked the authority to vacate Hill's MSR term or give him any credit relating to the MSR because MSR is required by 730 ILCS § 5/5-8-1(d).*fn1 It thus affirmed the dismissal of Hill's post-conviction petition. Hill filed a timely petition for leave to appeal ("PLA") with the Illinois Supreme Court, which denied leave to appeal on January 30, 2008.

On May 25, 2008, Hill filed a § 2254 petition arguing that he was denied due process when the state court allowed him to plead guilty but did not admonish him that a three-year term of MSR attached to his 20-year sentence and that the MSR term violates Illinois Supreme Court Rule 402.

III. Discussion

The respondent does not appear to challenge Hill's contention that he learned about the MSR term at some point shortly before December of 2002 when he filed his first state post- conviction petition. Since that proceeding was remanded and Hill filed his § 2254 petition within a year after the state court proceedings connected with that case concluded, Hill's § 2254 petition is timely. See 28 U.S.C. 28 U.S.C. § 2244(d)(1)(D). However, Hill's ...


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