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Reyes-Lopez v. Dennison

United States District Court, S.D. Illinois

September 5, 2017

SERGIO REYES-LOPEZ, No. Y-19963, Petitioner,
v.
JEFF DENNISON, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON UNITED STATES DISTRICT JUDGE

         Petitioner, a state prisoner who is 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.

         Rule 4 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 be dismissed without prejudice.

         The Petition

         Petitioner states that he pled guilty to two offenses in October 2015 (unlawful restraint, and aggravated battery to a police officer). (Doc. 1, p. 1). He was sentenced to 3 years on each conviction, with the sentences to be served concurrently. Petitioner was eligible for day-for-day good time credits, so he expected to be released on mandatory supervised release (MSR, also referred to as parole) after serving 18 months in prison. His MSR term was to be 2 years.

         Petitioner asserts that he has served the full 18 months and should now be released to serve his period of MSR. He was incarcerated on October 26, 2015, and became eligible for MSR on April 26, 2017. However, Respondent continues to hold him in custody, which Petitioner claims has illegally turned his MSR period into a prison sentence. (Doc. 1, p. 1). He further claims that he was “punished” by IDOC staff when he refused to sign papers that required him to voluntarily violate his MSR terms so that the IDOC could impose the “illegal prison sentence” under which he is now held. (Doc. 1, pp. 2, 4, 9-10).[1]

         Petitioner states that he is a citizen of Mexico who does not have legal status to be present in the United States, thus he faces deportation upon his release from the custody of the Illinois Department of Corrections. (Doc. 1, pp. 2, 3). He has no legal address to which he could be released on MSR. (Doc. 1, p. 4).

         Petitioner requests to be immediately released to the custody of federal authorities so that he may be deported to Mexico, where he vows he will remain and will never enter the U.S. again. (Doc. 1, p. 5).

         Petitioner adds that he does not speak English and requests an interpreter to translate his testimony at any hearing. (Doc. 1, p. 2).

         Discussion

         Before 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.

         Here, the habeas Petition does not reveal any attempts by Petitioner to bring his claim in state court before he filed this case. Further, Petitioner has not made any showing of cause and prejudice for the failure to exhaust his state court remedies on this matter. He must pursue relief in the Illinois courts before he may maintain a habeas action in federal court. Plaintiff may be able to file an action under the Illinois habeas corpus statute, 735 Ill. Comp. Stat. 5/10-101 et seq., or may file a mandamus action. See 735 Ill. Comp. Stat. 5/14-101 et seq.; Turner-El v. West, 811 N.E.2d 728, 733 (Ill.App. 2004) (citing Taylor v. Franzen, 417 N.E.2d 242, 247, aff'd on reh'g, 420 N.E.2d 1203 (Ill.App. 1981)).

         Until Petitioner brings his claim for release in state court and completes the state appellate review process, his claim remains unexhausted, and a federal habeas corpus action under § 2254 is premature. Accordingly, this action shall be dismissed.

         D ...


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