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Gay v. Johnson

June 19, 2009


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


This matter is now before the Court on Petitioner, Anthony Gay's ("Gay"), Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the § 2254 Petition [#3] is DENIED.


In 2003, while an inmate in the Illinois Department of Corrections, Gay was charged in the Circuit Court for Livingston County with aggravated battery and unlawful possession of a weapon by an inmate following an incident during which he intentionally threw feces at a corrections officer. On March 13, 2006, he pled guilty to both charges pursuant to a plea agreement under which the State agreed to recommend concurrent terms of seven years' imprisonment and allow Gay to make two free 30-minute phone calls. Gay was admonished pursuant to Supreme Court Rule 402(a), and the circuit court accepted the plea as knowing and voluntary. He was sentenced to two concurrent terms of seven years' imprisonment and made one of his free phone calls within three days after entering his guilty plea.

On April 10, 2006, Gay moved to withdraw his guilty plea, claiming to have been under duress at the time he entered into it. He alleged that he faced dismissal of his federal civil rights suit regarding prison medical care unless he paid the filing fee in that case by March 15, 2006, and that he had pled guilty in his criminal case so that he could use the free phone calls to contact family members to ask them to pay the filing fee in his civil case. After appointing counsel to represent Gay, the circuit court held an evidentiary hearing on the motion to withdraw the guilty plea. During the hearing, Gay testified that he pled guilty to get the phone calls, all the while intending to withdraw the plea once his calls had been made. He further acknowledged that he had never informed either the court or the State about his dilemma with his civil suit or the purpose for his phone calls and that the State had complied with its obligations under the plea agreement. The circuit court then denied the motion, finding that Gay had committed a "purposeful, calculated fraud" on the court and the state.

Gay pursued an appeal to the Illinois Appellate Court, and his sentence was affirmed on October 3, 2007. He filed a Petition for Leave to Appeal to the Illinois Supreme Court, which was denied on January 30, 2008.

In November 2008, Gay initiated an attempt to collaterally attack his sentence and conviction through a post-conviction petition pursuant to 725 ILCS 5/122-1 in the Circuit Court of Livingston County. This petition appears to remain pending, but has no bearing on this 2254 petition, as the sole claim asserted in it was properly presented on Gay's direct appeal. The State has filed is Answer to the § 2254 petition, and 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 Gay 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). Respondent also concedes that Gay has not procedurally defaulted his claim.

With respect to claims that are not barred either for failure to exhaust or procedural default, federal courts must employ a strict analysis. A petition must be denied with respect to any claim previously adjudicated on the merits in a state court unless the decision of the state court:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. ยง 2254(d). See also Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir. ...

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