The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Petitioner Cory Robinson ("Mr. Robinson") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Mr. Robinson cannot establish that the state court decision he challenges is "contrary to" or "an unreasonable application of" any clearly established federal law, Mr. Robinson's petition is denied. See 28 U.S.C. § 2254(d)(1).
According to the facts set forth in the opinion of the Illinois Appellate Court, on March 13, 1989, Mr. Robinson entered the apartment of his girlfriend and stabbed her with a knife, then proceeded to a bedroom where he stabbed his girlfriend's cousin multiple times, causing the cousin's death. (See Pet. for Writ of Habeas Corpus (hereinafter "Petition"), ECF No. 8, Ex. H.)Mr. Robinson's girlfriend survived, and he was charged with first-degree murder, attempted murder, home invasion, residential burglary, burglary, and aggravated battery.
During the pendency of the case, a number of plea negotiation conferences were held pursuant to Illinois Supreme Court Rule 402. Transcripts indicate that these conferences were held on June 20, 1990 and April 24, 1991, with the latter date apparently continued until May 1, 1991. (See Petition Ex. A--B.) On June 13, 1991, the parties-Mr. Robinson represented by counsel-appeared once again, and the court indicated that a plea agreement had been reached. The parties agree that although the State agreed to drop certain charges, it was the court-not the State-that offered Mr. Robinson forty-five years in exchange for his guilty plea. In response to that offer, Mr. Robinson pleaded guilty to first degree murder, attempted murder, and residential burglary, and was sentenced to concurrent terms of forty-five, thirty, and ten years of imprisonment.
Following his plea, Mr. Robinson filed a variety of challenges in state court, including a petition to reduce his sentence and a petition to vacate the judgment under 735 ILCS 5/2-1401. Although the procedural history is not crystal clear, it appears that those petitions were denied, and they are not raised in this petition for relief under 28 U.S.C. § 2254.
The petition presently at issue stems from Mr. Robinson's October 28, 2003*fn1
"Petition for a Corrective Mittimus/Motion for Nunc Pro Tunc Order," in which he alleged that he was never admonished that a three-year period of mandatory supervised release ("MSR") would be appended to his sentence. Under 730 ILCS 5/5-8-1(d)(1), a conviction for first degree murder carries with it an automatic MSR period of three years.
Mr. Robinson claims that had he known of the MSR period at the time of his plea, he would not have pleaded guilty; in fact, he alleges that he rejected offers for eighty, sixty, and fifty years, but accepted the offer for forty-five years, which would lend some credence to his claims. The State filed a motion to dismiss. Following appointment of counsel and the restructuring of the petition as one for post-conviction relief under 725
Ill. Comp. Stat. 5/112-1, the Illinois state court granted the motion and dismissed Mr. Robinson's petition in open court on April 29, 2005. (See Petition Ex. G.)
The court's stated reason for granting the motion to dismiss rested upon Mr. Robinson's request for relief. His original charges rendered him eligible for the death penalty, and Mr. Robinson did not want to withdraw his plea, because he would have been death eligible once again.*fn2 But Mr. Robinson also recognized that the MSR period is mandatory and cannot be severed from his sentence. See People v. Russell, 345 Ill. App. 3d 16, 22 (2003) ("Courts do not have authority to strike the mandatory supervised release term imposed under this statute."). Thus, Mr. Robinson instead asked that the MSR period be "folded into" his sentence, as was the case in People v. Moore, 214 Ill. App. 3d 938 (1991). The trial court rejected that request, stating that incorporating the MSR period into the original sentence "is no different than striking it; in effect what would happen is there would not be any MSR." (See Petition Ex. G at 10.) Because the court understood Russell to foreclose Mr. Robinson's requested relief, it dismissed Mr. Robinson's petition.
Mr. Robinson appealed, raising the same claims he raised before the trial court. After the appeal was briefed, but before it was decided, the Illinois Supreme Court issued People v. Whitfield, 217 Ill. 2d 177 (2005). There, the Illinois Supreme Court held that where a court fails to admonish a defendant that his sentence includes a period of MSR and the defendant pleads guilty pursuant to a negotiated plea agreement, the addition of the MSR term "amounts to a unilateral modification and breach of the plea agreement by the State, inconsistent with constitutional concerns of fundamental fairness." Id. at 190. Notably, the court crafted a remedy wherein it decreased the defendant's twenty-five year sentence to twenty-two years, followed by a three-year MSR term-the very type of relief Mr. Robinson had requested. Id. at 205.
The appellate court, however, denied Mr. Robinson's appeal on the basis that Mr. Robinson's plea was not a "fully negotiated" plea. (See Petition Ex. H.) In the court's view, "[a] guilty plea necessarily derives from an agreement between the defendant and the State, not the court." Because it was the trial court that had offered the proposed sentence, the reviewing court found that the trial court "retained full discretion to impose a sentence." Further, the court found that "defendant was not denied the benefit of his bargain with the State" because the State "agreed to, and did, drop certain charges." The appellate court therefore affirmed the trial court's decision. Mr. Robinson duly sought a petition for leave to appeal to the Illinois Supreme Court, which was denied on September 27, 2007.
Mr. Robinson filed his § 2254 petition with this court on March 17, 2008, and the State filed a motion to dismiss on the basis that the petition was untimely under 28 U.S.C. § 2244(d)(1). This court denied the motion, finding that Mr. Robinson filed his initial petition within one year of the date he learned that his sentence included a three-year MSR period, and that his petition was ...