MICHAEL P. McCUSKEY, District Judge.
Petitioner, De'Markus Bailey, filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (#1) on February 14, 2013. Petitioner contends that he is entitled to be released immediately from the Illinois Department of Corrections because he has already served 50% of his sentence and cannot constitutionally be required to serve 85% of the sentence. On May 30, 2013, Respondent filed a Motion to Dismiss Petitioner's Petition for a Writ of Habeas Corpus (#13). Respondent argued that Petitioner's purported § 2241 Petition must be construed as a Petition pursuant to § 2254 and dismissed as an unauthorized successive habeas petition. On June 13, 2013, Petitioner filed a Reply (#16) and argued that his § 2241 Petition should not be recharacterized as a Petition under § 2254. This court agrees with Respondent that Petitioner's claim can only be brought under § 2254 and must be dismissed because this court lacks subject matter jurisdiction. This court additionally finds that, even if this court considered Plaintiff's claim under § 2241, it is entirely without merit.
On May 8, 2000, Petitioner pled guilty to aggravated criminal sexual assault in the circuit court of Will County. The factual basis for the plea stated that, on January 18, 1999, Petitioner sexually assaulted the victim after attacking her with a stun gun. Petitioner was sentenced to 20 years in prison. Petitioner did not appeal his conviction and sentence.
In August 2009, Petitioner filed a Petition under 28 U.S.C. § 2254 in the Northern District of Illinois. Bailey v. Randle, No. 09 C 5537. Petitioner argued that Illinois' truth-in-sentencing statute requiring sexual assault prisoners to serve 85% of their sentences should not apply to his 2000 conviction. The district court dismissed the petition as untimely, noting that it was filed nearly seven years after Petitioner received documentation showing that his sentence was being calculated under the 85% rule.
Also in 2009, Petitioner filed an action in the circuit court of Sangamon County against Governor Pat Quinn and others. The circuit court dismissed the case on May 20, 2010, finding that Petitioner's "sentence is being correctly calculated."
On November 23, 2009, Petitioner filed a petition for writ of habeas corpus in the circuit court of Will County. The circuit court dismissed the petition, and Petitioner appealed. The Illinois Appellate Court, Third District, affirmed the dismissal in an unpublished Order on December 19, 2011. Bailey v. Anglin, Case No. 3-11-0159. The Appellate Court thoroughly addressed Petitioner's claim regarding the truth-in-sentencing statute as follows:
Public Act 89-404, enacted in 1995, amended 10 different statutory provisions. People v. Reedy, 186 Ill.2d 1, 10 (1999). Section 40 amended the Unified Code of Corrections (730 ILCS 5/1-1-1 et seq. (West 1996)), and provided for "new truth-in-sentencing rules for calculating good-conduct credit and early release." Id. As plaintiff correctly alleges, our supreme court held this legislation unconstitutional on January 19, 1999, because it violated the single subject clause of the Illinois Constitution. Id.
Plaintiff acknowledges in his complaint that the legislature passed Public Act 90-592, effective June 19, 1998, but argues that it was no longer the law as of January 1, 1999. Our supreme court in Reedy noted that during the pendency of the case the legislature enacted Public Act 90-592 (Pub. Act 90-592, eff. June 19, 1998) and that the act "both deleted and recodified the entire truth-in-sentencing legislation originating from Public Act 89-404." People v. Reedy, 186 Ill.2d at 17. Public Act 90-592 became effective June 19, 1998, and modified section 3-6-3(a)(2) of the Unified Code of Corrections. People v. Reedy, 186 Ill.2d at 17. Thereafter, this court upheld the constitutionality of Public Act 90-592 in People v. Norris, 328 Ill.App.3d 994, 998 (2002).
Although not addressed by the State, plaintiff also contends that the passage of P.A. 90-740 (eff. Jan. 1, 1999) resulted in P.A. 90-592 (eff. June 19, 1998) no longer being the law after January 1, 1999, when plaintiff committed his offense, and therefore, plaintiff was not subject to truth-in-sentencing. Contrary to plaintiff's argument, the legislature did not reinstate the prior legislation, which was held unconstitutional by our supreme court in Reedy, by passing P.A. 90-740. This public act, P.A. 90-740, amended sections 3-6-3 and 5-4-1 of the Unified Code of Corrections (730 ILCS 5/3-6-3, 5/4-4-1 (West 1998)). See P.A. 90-740 (eff. Jan. 1, 1999). Accordingly, the language contained in P.A. 90-592, along with the limited, but additional, amendatory language of P.A. 90-740, became the law on January 1, 1999, and was the law in effect at the time plaintiff committed this offense on January 18, 1999.
Since it is undisputed that the record shows that plaintiff committed the offense of aggravated criminal sexual assault and that offense is an offense subject to truth-in-sentencing (730 ILCS 5/3-6-3 (West 2000)), we conclude the Department of Corrections has correctly calculated plaintiff's sentence. This also leads us to the conclusion that plaintiff has not satisfied the terms of his sentence, is not entitled to immediate release, and cannot be granted the habeas corpus relief as requested. Therefore, the trial court properly dismissed plaintiff's complaint.
Bailey v. Anglin, Case No. 3-11-0159 (paragraph numbers omitted). Petitioner filed a petition for leave to appeal to the Illinois Supreme Court which was denied on March 28, 2012.
In 2010, Petitioner filed two separate "civil rights actions" in the Northern District of Illinois challenging the sentence for his 2000 conviction. Bailey v. Randle, No. 10 C 1548; Bailey v. Randle, No. 10 C 1549. The district court dismissed both actions, determining that a § 2254 petition is the sole vehicle for state prisoners to challenge their incarcerations and that, in light of Petitioner's prior § 2254 petition, he could not file another such petition without advance authorization from the Seventh Circuit Court of Appeals.
On September 15, 2010, Petitioner filed a "Petition to Vacate Void Judgment" under 735 ILCS 5/2-1401 (West 2010) in the circuit court of Will County. Petitioner alleged that his 20-year prison sentence was void because part of the truth-in-sentencing statute (730 ILCS 5/3-6-3 (West 2000)), enacted by Public Act 89-404 (eff. August 20, 1995), was ruled unconstitutional by the supreme court in Reedy. The circuit court dismissed Petitioner's petition, finding that the truth-in-sentencing statute was in effect at the time the crime was committed. Petitioner appealed, and the Illinois Appellate Court, Third District, affirmed on February 23, 2012. People v. Bailey, Case No. 3-11-0069. The court stated that "Public Act 90-592 was in effect on the date ...