The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Petitioner Richard Neville'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, Neville's petition is denied.
In 1999, pro se petitioner Richard Neville (prisoner # K78239) was convicted of two counts of predatory criminal sexual assault under 720 ILCS § 5/12-14.1 based on conduct occurring in 1998. He was subsequently sentenced to a nine-year term of imprisonment for each count to run concurrently. See Neville v. Walker, No. 4-07-0226 (Ill. App. Ct. Nov. 16, 2007) (unpublished order). On August 31, 2006, Neville's determinate sentence expired and the Prisoner Review Board conditionally transitioned Neville to mandatory supervised release ("MSR"). His mandatory supervised release term expires on September 26, 2009.
Because the Board found that Neville was a sex offender under 730 ILCS § 150/2(b)(1), it imposed electronic monitoring as a special condition of Neville's MSR under 730 ILCS § 5/3-3-7(b-1)(6), which allows the Board to condition release to MSR on submitting to electronic detention. However, even with the assistance of the Department of Corrections, Neville was unable to find an acceptable host site that would accommodate his need for electronic monitoring.
This left Neville between a rock and a hard place: his term of mandatory supervised release expired on August 31, 2006, yet he could not be released from confinement and transitioned to MSR because that would have put him in immediate violation of the Board's electronic monitoring conditions since he could not be placed at an appropriate host site. Thus, IDOC declined to release Neville, who has been serving his mandatory supervised release in custody, and remains incarcerated at Lawrence Correctional Center in Sumner, Illinois.
Distressed with his continued incarceration, Neville filed a mandamus action in the Circuit Court of Sangamon County in September of 2006, arguing that his continued physical custody violated the ex post facto clauses of the Illinois and United States Constitutions. This argument was "based on his contention that the Board may not condition his MSR on compliance with any sex-offender-specific conditions because [730 ILCS § 5-3-7(b-1)] was added to the statutory scheme governing MSR after the date [Neville] committed his crimes and was sentenced." See Neville v. Walker, No. 4-07-0226 at 2.
After the trial court dismissed his complaint, Neville filed a pro se appeal and argued that he was not subject to § 3-3-7(b-1) because it was added to Illinois law after the date he committed his crimes, so retroactively subjecting him to electronic monitoring violated the constitutional prohibition on ex post facto laws. The state appellate court rejected this argument, noting that in 1988, 730 ILCS § 5/3-3-7(a) authorized the Board to set any MSR conditions "necessary to assist the subject in leading a law-abiding life." It then found that this statutory provision gave the Board broad discretionary authority to set MSR conditions and that electronic monitoring was merely one of many possible MSR conditions.
The Illinois Appellate Court also held that the legislative change did not impose punishment because all of the versions of the MSR statute were meant to protect the public and help defendants reintegrate themselves into society. Citing to Smith v. Doe, 538 U.S. 84, 93 (2003), the Illinois Appellate Court then found that because the MSR statute was non-punitive and meant to protect the public as opposed to punish the offender, it is not a punishment and thus is not governed by the ex post facto clause.
Finally, the Illinois Appellate Court concluded that requiring electronic monitoring as a condition of MSR did not extend Neville's sentence because both in 1999 and 2006 (when Neville was first eligible for MSR), an inmate was entitled to MSR only if he or she complied with conditions imposed by the Board. According to the Illinois Appellate Court, the 2006 list of conditions "simply explicitly articulated the [Board's] broad range of discretion which had always existed" and thus did not run afoul of the ex post facto prohibition. Neville v. Walker, No. 4-07-0226 at 7, quoting Heirens v. Mizell, 729 F.2d 449, 463 (7th Cir. 1984).
On January 3, 2008, Neville filed a petition for leave to appeal to the Illinois Supreme Court ("PLA"), asserting that his ongoing physical custody violated the due process and ex post facto clauses of the United States and Illinois Constitutions. On June 24, 2008, Neville filed a motion for an emergency ruling, arguing that the Illinois Supreme Court was unconstitutionally delaying ruling on his PLA. On July 22, 2008, the Illinois Supreme Court denied the motion for an emergency ruling, and on September 24, 2008, denied leave to appeal.
While waiting for the Illinois Supreme Court to rule on his PLA, Neville signed a federal habeas petition on July 27, 2008. That petition is currently pending before this court. Neville's § 2254 petition is properly before this court as a state prisoner may seek federal habeas relief to remedy the retroactive application of a law that poses a significant risk of increased punishment. See Garner v. Jones, 529 U.S. 244, 250 (2000); Michael v. Ghee, 498 F.3d 372, 383 (6th Cir. 2007).
Neville contends that his continued incarceration violates the due process and ex post facto clauses.*fn1 For the following reasons, the court finds that ...