United States District Court, S.D. Illinois
SERGIO REYES-LOPEZ, No. Y-19963, Petitioner,
JEFF DENNISON, Respondent.
MEMORANDUM AND ORDER
R. HERNDON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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,
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).
adds that he does not speak English and requests an
interpreter to translate his testimony at any hearing. (Doc.
1, p. 2).
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.
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
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