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McWhorter v. Madigan

United States District Court, S.D. Illinois

September 15, 2016

KEVIN McWHORTER, Petitioner,
v.
LISA MADIGAN, Respondent.

          MEMORANDUM AND ORDER

          David R. Herndon, Judge

         This case presents the rare instance where an inmate in the custody of the Bureau of Prisons can bring a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254.

         In 2009, petitioner Kevin McWhorter pleaded guilty to one count of conspiracy to manufacture and distribute methamphetamine in this District. U.S. v. McWhorter, Case No. 09-30046-JPG. He was sentenced to 240 months imprisonment, and is presently in the custody of the Bureau of Prisons on that sentence. His federal sentence was enhanced based on a prior state conviction for manufacturing methamphetamine, Case No. 01-CF-63, Shelby County, Illinois. Petitioner also had a second drug conviction in Shelby County, Illinois, in 2002, but the Government elected not to pursue enhancement based on the 2002 conviction. See, Notice of Government's Intent to Seek Enhanced Sentence, Doc. 12, Ex. 1, p. 21, and Plea Agreement, Ex. 1, p. 28.[1]

         Petitioner argues that both of his state drug convictions were unconstitutionally imposed because he was not advised of his right to appointed counsel.

         Relevant Facts and Procedural History

         McWhorter pleaded guilty to one count of unlawful manufacture of methamphetamine in Shelby County, Case No. 01-CF-63, on July 2, 2001. Pursuant to a plea agreement, he was sentenced to three years imprisonment on that same day. He appeared without an attorney, but the judge informed him that he had a right to be represented by an attorney, and that, if he could not afford an attorney, the judge would appoint the public defender to represent him. He waived counsel. Doc. 12, ex. 1, pp. 3-4.

         Petitioner did not move to withdraw his plea or file an appeal in state court. In his habeas petition, he claims to have filed a motion to vacate in 2003, asserting that he had not been appointed counsel. See, Doc. 1, pp. 2-3, & 11. According to the docket sheet for the 2001 Shelby County case, McWhorter did not file anything in 2003 in that case. Ex. 1, pp. 47-48. In March 2003, McWhorter filed an affidavit in the 2002 case. Doc. 1, p. 65. The affidavit complained that the IDOC was not giving him six months of good conduct time and school credit that he had earned. The affidavit did not mention anything about a lack of counsel at this plea. Ex. 1, pp. 72-73.

         In November 2009, petitioner was sentenced to 240 months imprisonment in his federal case, U.S. v. McWhorter, Case No. 09-30046-JPG. See, Judgment, Ex. 1, pp. 40-45. He did not file a direct appeal. He filed a motion under 28 U.S.C. §2255 in January 2012, but then filed a motion to voluntarily dismiss, which was granted. McWhorter v. U.S., Case No. 2-089-JPG, Doc. 3.

         In June 2012, McWhorter filed Motions for Writ of Error Coram Nobis in both of his Shelby County cases. Ex. 1, p. 76. The judge denied the motions by minute entry because the “form of relief sought by defendant has been abolished.” Ex. 1, p. 66.

         In August 2012, McWhorter filed a motion to vacate the judgment in both of his Shelby County cases. Ex. 1, pp. 53, 83. With respect to the 2001 case, he alleged that he did not waive appointment of counsel. He stated “The Court never made any admonishments regarding defense counsel [and] the Court never advised the cause and nature of the charged offense.” Ex. 1, p. 54, &5.

         An August 31, 2012, note on the court's docket sheet for Case No. 01-CF-63 says “see 02-CF-87.” On the docket sheet for the 2002 case, on that same date, the judge denied the motion to vacate by minute entry because the motion was untimely and the court had no jurisdiction to grant the relief requested. Ex. 1, pp. 66-67.

         McWhorter filed a notice of appeal. Ex. 1, p. 58. The Office of the State Appellate Defender was appointed to represent him. Ex. 1, p. 62. On November 29, 2012, the Appellate Court entered a show cause order granting McWhorter's counsel fourteen days in which to “show cause why the defendant has not waived his right to a direct appeal for failing to file a timely 604(d) motion.” The order pointed out that, under state rules, no appeal could be filed from a judgment entered on a guilty plea unless the defendant had filed a motion to withdraw the plea (a “604(d) motion”) within thirty days of the imposition of sentence, which McWhorter had not done. The court stated “Since defendant did not file a timely 604(d) motion, he has waived his right to a direct appeal.” The State Appellate Defendant filed a “no response letter.” The Appellate Court then dismissed the appeal “for the reasons set forth in this court's 11/29/12 show cause order.” Ex. 1, pp. 94-98.

         Respondent represents that she has confirmed that McWhorter did not file a petition for leave to appeal in the Illinois Supreme Court. Doc. 11, p. 4. In Doc. 1, p. 2, &9(e), petitioner states that “Court would not file appeal since no decision on the merits was issued in the Court of Appeals.” At page 9 of his habeas petition, McWhorter states that the “Illinois Supreme Court would not accept filing of an appeal since no decision on the merits was rendered by the Court of Appeals.”

         Applicable Legal Standards

         1. Availability of 28 U.S.C. §2254

         Generally, the validity of a fully-expired sentence cannot be challenged by way of a petition under 28 U.S.C. §2254. “[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid.” Lackawanna County District Attorney v. Coss, 121 S.Ct. 1567, 1574 (2001). This remains true even if the prior conviction is later used to enhance another sentence. There is, however, an exception to the general rule. A §2254 petition may be brought to “challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).” Ibid. In such a case, the petitioner must satisfy “the procedural prerequisites for relief including, for example, exhaustion of remedies.” Lackawanna, 121 S.Ct. at 1567.

         Lackawanna involved a state prisoner whose current sentence had been enhanced by a prior state conviction. Here, in contrast, the petitioner is a federal prisoner whose current sentence was enhanced by a prior state conviction. However, it appears that the rule of Lackawanna applies to allow a federal prisoner such as McWhorter to challenge his expired state conviction under §2254. See, Johnson v. United States, 125 S.Ct. 1571, 1578 (2005), noting that a federal prisoner “could proceed under §2255 after successful ...


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