The opinion of the court was delivered by: Richard Mills, U.S. District Judge:
E-FILED Tuesday, 13 September, 2011 10:38:40 AM Clerk, U.S. District Court, ILCD
This case is before the Court on the application and petition for a
writ of habeas corpus under 28 U.S.C. § 2254 filed by Louis T. Jones.
Pursuant to Rule 4 of the Rules Governing Habeas Corpus Petitions
Under Section 2254, the Court ordered the Respondent*fn1
to file an Answer or other Response. After reviewing the
record, the Court concludes that an evidentiary hearing is not
Petitioner Louis Jones is incarcerated at the Taylorville Correctional Center in Taylorville, Illinois, where he is in the custody of Warden Jerry Buscher. At the conclusion of a 2005 jury trial in the Circuit Court of Macon County, the Petitioner was convicted of predatory criminal sexual assault and aggravated criminal sexual abuse and sentenced to consecutive terms of ten years and three years of imprisonment, respectively.
On appeal, the Petitioner raised four claims: (1) the trial court erred by failing to inquire into his pro se claim of ineffective assistance of trial counsel; (2) the trial court erred when it allowed a police officer to testify that she believed the Petitioner was guilty of the charged offenses; (3) trial counsel was ineffective; and (4) the Petitioner was entitled to 249 days of credit against his sentence for time served prior to sentencing, instead of the 217 days that the trial court had credited him with, resulting in an additional 32 days of sentencing credit. On January 23, 2007, the state appellate court affirmed the Petitioner's convictions and sentences and amended his sentencing order to reflect 31 days of credit against his prison sentence for time served prior to sentencing--a total of 248 days of credit instead of 217.
The Petitioner filed a petition for leave to appeal (PLA) the appellate court's judgment, claiming, inter alia, that the sentencing order should be amended to reflect additional days of credit. On May 31, 2007, the Illinois Supreme Court denied the PLA. The Petitioner then had 90 days within which to file a petition for a writ of certiorari in the United States Supreme Court. See S. Ct. Rule 13. He chose not to do so. The appellate court's mandate issued on July 12, 2007, affirming the judgment of the circuit court as modified to reflect the additional sentencing credit. The appellate court remanded the case to the circuit court with directions to conduct proceedings consistent with its order.
On February 22, 2007, the Petitioner filed in the Circuit Court of Macon County a pro se post-conviction petition pursuant to 725 ILCS 5/122-1, et seq. On September 28, 2007, an order of habeas corpus was entered to writ the Petitioner in for a status hearing on October 18, 2007. The court appointed counsel to represent the Petitioner at the hearing. On August 15, 2008, an amended post-conviction petition was filed. On October 8, 2008, the trial court denied the post-conviction petition. The Petitioner did not appeal the judgment.
The Petitioner signed the instant § 2254 petition on August 5, 2010, and it was received by the Court on August 9, 2010. Although the petition lists four grounds for relief, it amounts to one claim: the Petitioner alleges that he is being held unlawfully after the state appellate court ruled in his favor on July 12, 2007, "on post-conviction relief."
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."
Thus, federal habeas review is not appropriate unless the state prisoner has first exhausted his available state court remedies. See Gonzalez v. Mize, 565 F.3d 373, 380 (7th Cir. 2009). "The petitioner is therefore required to first present the state courts with the same claim he urges upon the federal courts." Lieberman v. Thomas, 505 F.3d 665, 670 (7th Cir. 2007) (internal quotation marks and citations omitted). A federal court may not address the merits of a claim brought in a habeas petition unless ...