United States District Court, S.D. Illinois
SHANE A. KITTERMAN, No. B-80577, Petitioner,
JOHN GARNETT, Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge
a state prisoner currently incarcerated in the Big Muddy
River Correctional Center, brings this habeas corpus action
pursuant to 28 U.S.C. § 2254 to challenge the
constitutionality of his confinement.
petition was filed on June 22, 2016. Petitioner challenges
his three St. Clair County convictions for failure to
register as a sex offender: St. Clair County Circuit Court
Nos. 12-CF-1204, 14-CF-1422, and 15-CF-373. In Case No.
14-CF-1422, he was found guilty following a jury trial. He
entered guilty pleas in the other two cases. On August 20,
2015, he was sentenced to three years in each case, with the
2014 and 2015 case sentences ordered to be served
consecutively, and the 2012 sentence concurrent (Doc. 1, pp.
notes that he filed directs appeal from each of the
convictions. His appeals are still pending before the
Illinois Appellate Court, Fifth District. He has filed a
brief in the 2012 and 2015 cases, and the state’s
response brief is not due until November 2016. He states he
has not yet filed a brief in the 2014 case (Doc. 1, p. 13).
seeks relief on the basis that his duty to register as a sex
offender, which originated with a 1995 offense, terminated
before he was charged in the 2012, 2014, and 2015 cases. He
raised this issue in Case No. 12-CF-1204 (Doc. 1, p. 25). In
rejecting this affirmative defense, the trial court noted
that the question of the legitimacy of requiring petitioner
to register as a sex offender is reserved for appeal.
of the Rules Governing § 2254 Cases in United States
District Courts provides that upon preliminary consideration
by the district court judge, “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to
notify the petitioner.” After carefully reviewing the
petition in the present case, the Court concludes that
petitioner is not entitled to relief, and the petition must
a habeas action may be heard in federal court, a petitioner
is required to exhaust his available remedies in state court,
or else show cause and prejudice for the failure to exhaust.
28 U.S.C. § 2254(b)(1); McAtee v. Cowan, 250
F.3d 506, 508-09 (7th Cir. 2001). To exhaust his remedies, a
state prisoner must fairly present his claim in each
appropriate state court including a state supreme court with
powers of discretionary review. Byers v. Basinger,
610 F.3d 980, 985 (7th Cir. 2010); Baldwin v. Reese,
541 U.S. 27, 29 (2004); see also O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (holding that state
prisoners “must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate
review process”); Spreitzer v. Schomig, 219
F.3d 639, 644-45 (7th Cir. 2000). A prisoner need not pursue
all separate state remedies that are available to him but
must give “the state courts one fair opportunity to
pass upon and correct the alleged violations.”
McAtee, 250 F.3d at 509. Further, “[i]f a
prisoner fails to present his claims in a petition for
discretionary review to a state court of last resort, those
claims are procedurally defaulted.” Rodriguez v.
Scillia, 193 F.3d 913, 917 (7th Cir. 1999); see also
O’Sullivan, 526 U.S. at 848.
appeals are still pending before the state appellate court.
In the event his appeals do not succeed, he will have the
opportunity in the future to seek review from the Illinois
Supreme Court. If petitioner were to obtain relief from the
state courts on the issues he has raised on appeal, review by
this Court would be unnecessary. In any case, it is premature
to bring his claims in federal court at this time. Until
petitioner fully completes the state appellate review
process, his claims remain unexhausted. Further, petitioner
has not made any showing of cause and prejudice for the
failure to exhaust his state court remedies on this matter.
reasons stated above, the instant habeas petition is
DISMISSED without prejudice. If necessary, petitioner may
re-file his claims raised herein after his state court
remedies are fully exhausted, so long as he does so within
the applicable time limits. See 28 U.S.C. §
pending motions are DENIED AS MOOT.
petitioner wishes to appeal this dismissal, he may file a
notice of appeal with this court within thirty days of the
entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
leave to appeal in forma pauperis should set forth
the issues petitioner plans to present on appeal.
See Fed. R. App. P. 24(a)(1)(C). If petitioner does
choose to appeal and is allowed to proceed IFP, he will be
liable for a portion of the $505.00 appellate filing fee (the
amount to be determined based on his prison trust fund
account records for the past six months) irrespective of the
outcome of the appeal. See Fed. R. App. P. 3(e); 28
U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547
F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza,
181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
proper and timely motion filed pursuant to Federal Rule of
Civil Procedure 59(e) may toll the 30-day appeal deadline. A
Rule 59(e) motion must be filed no more than twenty-eight
(28) days after the entry ...