United States District Court, S.D. Illinois
JAMES L. GIBSON, Petitioner,
MICHAEL J. BUETTNER, Respondent.
MEMORANDUM AND ORDER
R. HERNDON, District Judge:
currently on probation in St. Clair County, brings this
habeas corpus action pursuant to 28 U.S.C. § 2254 to
challenge the constitutionality of his probation. While the
Illinois Court of Appeals noted that under Illinois law,
probation does not entitle one to habeas relief, Gibson
v. Buettner, No. 5-14-0014, 2014 WL 4657299 ( Ill. App.
5th Dist. Sept. 18, 2014), the Seventh Circuit has held that
§ 2254 is the appropriate vehicle for relief for a
person seeking release from the conditions of their
probation. Thomas v. Zaruba, 188 F. App'x 485,
486 (7th Cir. 2006). Accordingly, the underlying petition was
filed on August 11, 2016. Petitioner challenges his term of
conditional probation imposed by the state court for his
conviction of cocaine possession.
was arrested on April 25, 2008 after a traffic stop for
failing to signal revealed cannabis and cocaine. (Doc. 2, p.
1). Although petitioner was originally arrested for cannabis
possession, he was never charged with that crime or issued a
ticket for failure to signal. After his motion to suppress
was denied on April 9, 2010, petitioner was tried by a jury
on September 13, 2010 and found guilty of unlawful possession
of a controlled substance. Petitioner was sentenced to three
years of conditional probation. (Doc. 2, p. 2).
filed a direct appeal on December 28, 2010. The Fifth
District Appellate Court denied the appeal on October 12,
2012. Petitioner never appealed to the Illinois Supreme
Court. (Doc. 2, p. 2). Petitioner then filed for a writ of
habeas corpus in the circuit court of St. Clair County on
October 31, 2013. The Circuit Court denied the petition on
December 4, 2013, and petitioner filed another appeal with
the Fifth District on January 3, 2014. The Fifth District
denied the appeal on September 15, 2014. (Doc. 2, p. 3).
Petitioner never sought leave to appeal to the Illinois
Supreme Court. (Doc. 2, p. 4). Petitioner now brings this
suit making the same arguments he made to the Illinois
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.
has affirmatively stated here that he has not exhausted his
state court remedies. He did not appeal the unfavorable state
appellate court decision to the Illinois Supreme Court on
either the round of direct review or during post-conviction
relief. Petitioner does not explain why he did not seek leave
to appeal or argue that the exhaustion requirement should be
excused in his case. 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 ...