The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Respondent's motion to dismiss Petitioner William Chatman's (Chatman) pro se petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254. For the reasons stated below, the motion to dismiss is granted.
On January 12, 2005, in Illinois state court, Chatman pled guilty to murder with intent to kill or cause great bodily harm after hitting, kicking, and shooting a woman, which resulted in her death. Chatman was sentenced to twenty-one years of imprisonment on the same day. Chatman did not file a direct appeal and did not move to withdraw his guilty plea. In September 2006, Chatman filed a pro se post-conviction petition. In December 2006, the state trial court dismissed the post-conviction petition. Chatman appealed the dismissal, and the trial court was affirmed by the Illinois Appellate Court in June 2008. Chatman then filed a petition for leave to appeal (PLA) to the Illinois Supreme Court, and on March 24, 2010, the Illinois Supreme Court denied the PLA, but remanded the case to the Illinois Appellate Court for reconsideration in light of a recent ruling by the Illinois Supreme Court. In August 2011, the Illinois Appellate Court again affirmed the trial court. The record does not reflect that Chatman filed a subsequent PLA. In September 2011, in case number 11 C 6107, Chatman filed a habeas petition, which was dismissed for failure to pay the filing fee. In January 2012, Chatman filed the instant Petition pursuant to 28 U.S.C. § 2254. Respondent now moves to dismiss the Petition.
An individual in custody pursuant to state court judgment may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:
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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(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. § 2254(d). The decision made by a state court is deemed to be contrary to clearly established federal law "'if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'" Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable application of clearly established federal law "'if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.'" Emerson, 575 F.3d at 684 (quoting Bell, 535 U.S. at 694).
This court has liberally construed Chatman's pro se filings. See Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004)(stating that "[a]s [the petitioner] was without counsel in the district court, his habeas petition is entitled to a liberal construction"); Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001)(indicating that a court should "liberally construe the pleadings of individuals who proceed pro se"). Chatman asserts the following claims in the Petition: (1) that the prosecutor breached the terms of the plea agreement, violating Chatman's due process rights, and (2) that Chatman did not knowingly and voluntarily enter into the plea agreement.
Respondent notes that this court may lack subject matter jurisdiction over the instant Petition if it constitutes an improper successive habeas petition. As indicated above, Chatman had previously filed the Petition in case number 11 C 6107. In that case, the court denied Chatman's motion for leave to proceed in forma pauperis on November 3, 2011. The court gave Chatman until December 7, 2011, to either pay the filing fee or file an accurately and properly completed in forma pauperis application form for the Northern District of Illinois. The court warned Chatman that if he failed to pay the filing fee or file an accurately and properly completed in forma pauperis application form for the Northern District of Illinois by December 7, 2011, the case would be dismissed. The deadline passed, and Chatman had not paid the filing fee or filed an accurately and properly completed in forma pauperis application form for the Northern District of Illinois. Therefore, on December 9, 2011, the case was dismissed.
Respondent notes that the court did not specify in its dismissal order whether the dismissal was with or without prejudice. Respondent indicates that if the dismissal was intended to be with prejudice, the court lacks subject matter jurisdiction in this case, since the instant Petition would constitute an improper successive habeas petition. 28 U.S.C. § 2244(b)(3). In accordance with Seventh Circuit precedent, the dismissal in case number 11 C 6107 operated as a dismissal without prejudice. Pavlovsky v. VanNatta, 431 F.3d 1063, 1064 (7th Cir. 2005). Pursuant to Pavlovsky, a dismissal of a habeas petition for failure to pay the filing fee is deemed to be a dismissal without prejudice. Id. at 1064 (stating that "if the first petition was dismissed[,]or returned to the filer without even being accepted for filing, . . . because of a curable technical deficiency, as where the petition is filed prematurely or in the wrong district or without payment of the filing fee, so that the dismissal is not final and therefore 'without prejudice,' then it doesn't count as the first petition"); see also Rice v. City of Chicago, 333 F.3d 780, 784 (7th Cir. 2003)(indicating that "'[t]he drastic nature of a dismissal with prejudice requires the action to be used only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have ...