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Kitterman v. Garnett

United States District Court, S.D. Illinois

February 13, 2017

SHANE A. KITTERMAN, B-80577, Petitioner
JASON GARNETT, Respondent.


          David R. Herndon, United States District Judge

         Petitioner, a state prisoner currently incarcerated in the Shawnee Correctional Center, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of his confinement. The instant petition was filed on October 14, 2016.

         Previously, Petitioner filed a § 2254 habeas action in this Court on June 22, 2016 (Kitterman v. Garnett, Case No. 16-cv-684-DRH), which was dismissed on August 2, 2016, for failure to exhaust state court remedies. (Doc. 9 in Case No. 16-cv-684). Petitioner is currently serving sentences on 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, p. 1; Doc. 9 in Case No. 16-cv-684). Petitioner filed a direct appeal from each of these three convictions. Those appeals were still pending when he filed the earlier habeas action, thus, dismissal of that action was required.

         Each of the three recent convictions was premised on Petitioner's duty to maintain registration as a sex offender, following a January 10, 1996, conviction in St. Clair County for aggravated criminal sexual abuse (St. Clair County Case No. 95-CF-750). Petitioner asserts, however, that he in fact had no duty to register at the time he was charged with the 2012, 2014, and 2015 offenses, under the terms of his plea agreement in the 1995 case. According to that plea, he was to serve 4 years of probation, with the first 12 months being intensive probation. During the probation term, he would be required to comply with the “Child Sex Offender Registration Act, ” 730 ILCS 150 (West 1992), [1] but his duty to register would “cease to exist” upon termination of his probation. (Doc. 1, pp. 2-3; Doc. 1-1, p. 5). Petitioner maintains that his duty to register was terminated when he completed his sentence for the 1995 offense, and thus the convictions for the 2012, 2014, and 2015 cases are “unlawful and void.” (Doc. 1, p. 2).

         In the current petition, Kitterman specifies that his challenge is limited to one single issue: His assertion that the contract between himself and the State of Illinois, made on January 10, 1996, in the form of the negotiated plea agreement in St. Clair County Case No. 95-CF-750, resulted in Petitioner's duty to register as a sex offender being extinguished when he completed his probation term.[2] (Doc. 1, pp. 3-4). He asserts that he has exhausted all available state court remedies on this issue, by seeking leave to file an original writ of mandamus in the Illinois Supreme Court (denied on September 27, 2016); filing a motion in the Illinois Supreme Court to “declare law unconstitutional as applied” (denied on September 27, 2016); filing an emergency motion in the Illinois Appellate Court, Fifth District (denied in 2016) and attempting to bring an administrative action with the Illinois State Police. (Doc. 1, p. 4). Notably, this question of whether Petitioner had a duty to register as a sex offender was reserved for appeal in St. Clair County No. 12-CF-1204, which is one of the appeals that is still ongoing in the Illinois state courts (Doc. 1-1, p. 31; Doc. 9 in Kitterman v. Garnett, Case No. 16-cv-684-DRH (S.D. Ill.)).

         This habeas action is now before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 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, supplements, and motion for plenary hearing, the Court concludes that petitioner is not entitled to relief, and the petition must be dismissed.


         In order for Petitioner to raise a habeas corpus challenge to the 1995 St. Clair County conviction, as he clearly states he wishes to do in this petition, he must currently be “in custody” under that conviction. See 28 U.S.C. § 2241(c)(3) (“The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States.”); Maleng v. Cook, 490 U.S. 488, 490-91 (1989). The Supreme Court has interpreted the “in custody” requirement to mean that the petitioner must be in custody under the conviction or sentence he seeks to attack in the petition, at the time the habeas action is brought. Where the sentence under attack has fully expired, the habeas petitioner can no longer be “in custody” under that sentence, and thus cannot bring a habeas action to challenge the expired sentence or the conviction that the sentence was based upon. Maleng, 490 U.S. at 491; see also Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) (petitioner who “is no longer serving the sentences imposed pursuant to” the conviction challenged in a petition “cannot bring a federal habeas petition directed solely at” that conviction).

         The Maleng court further noted, “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody' for the purposes of a habeas attack upon it.” Maleng, 490 U.S. at 492. Thus, a habeas petitioner cannot maintain a habeas action solely challenging an expired sentence/conviction, even if the “collateral consequences” of the conviction might result in a lengthier incarceration for a later conviction. Id. Similarly, a petitioner confined after a civil commitment as a sexually violent person was no longer “in custody” for purposes of a direct habeas attack on the criminal conviction, because that sentence had expired - even though the previous criminal conviction was a predicate for the civil commitment. Stanbridge v. Scott, 791 F.3d 715, 718-19 (7th Cir. 2015). The Seventh Circuit explained in Stanbridge:

Maleng holds that when sentence A has expired but has been used to augment sentence B, the prisoner is “in custody” only on sentence B. The consequences of sentence A for sentence B do not yield continued “custody” on sentence A, the Court concluded. [However, ] a person in custody on sentence B may contend that that custody violates the Constitution if it was augmented because of an invalid sentence A.... Whether the federal court with jurisdiction over the custodian holding the prisoner on sentence B may inquire into the validity of sentence A is a matter of comity and the rules of preclusion, not of “custody.”

Stanbridge v. Scott, 791 F.3d at 721 (quoting Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990)).[3]

         In the case at bar, Petitioner is clearly not in custody on the 1995 conviction he seeks to challenge herein. He was released from prison in 1998, after completing the sentence he received when his original probation was revoked. The sentence for St. Clair County Case No. 95-CF-750 expired long ago, and he cannot now bring a habeas corpus challenge to that conviction. Accordingly, this Court lacks jurisdiction to entertain a petition seeking to challenge the 1995 conviction or sentence, and this action must be dismissed.

         Petitioner's current custody is the result of conduct occurring long after the expiration of the 1995 sentence. He is prosecuting his appeals of those 2012, 2014, and 2015 cases through the state courts. As Petitioner was advised in the order dismissing his earlier habeas corpus action (Case No. 16-cv-684), he cannot maintain a federal habeas challenge to the 2012, 2014, or 2015 convictions until he has fully exhausted his state court remedies.

         D ...

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