United States District Court, S.D. Illinois
SHANE A. KITTERMAN, B-80577, Petitioner
JASON GARNETT, Respondent.
MEMORANDUM AND ORDER
R. Herndon, United States District Judge
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.
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.
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),
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.
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. (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.
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.
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).
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
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
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.
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