United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
2017, Petitioner Donnell Jamison filed a Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (d/e 1) [hereinafter Petition]. Petitioner
argues that the consecutive nature of his imprisonment terms
increased his sentence without due process.
Court finds that an evidentiary hearing is not warranted.
See Rule 8(a) of the Rules Governing Section 2254
Cases in the United States District Courts. For the reasons
that follow, the Petition is DENIED. The Court could dismiss
the Petition because Petitioner has not exhausted all of his
available state court remedies. However, the Court chooses to
review the Petition on the merits and finds that the Seventh
Circuit's decision in Dellinger v. Bowen, 301
F.3d 758 (7th Cir. 2002) forecloses relief on
Petitioner's claim. Therefore, the Petition is DENIED.
December 14, 2016, the Circuit Court of DuPage County,
Illinois, sentenced Petitioner in two related cases in which
Petitioner had been convicted of identity theft. See
People v. Jamison, Nos. 2016-cf-1517, 2016-cf-1793 (Ill.
Cir. Ct.) (d/e 1-1 at 11-12). In case number 1793, the
Circuit Court sentenced Petitioner to one year of
imprisonment and one year of mandatory supervised release. In
case number 1517, the Circuit Court sentenced Petitioner to
three years and six months of imprisonment and one year of
mandatory supervised release, to run concurrently with the
sentence in case number 1793. The Circuit Court further
ordered that the sentence in case number 1517 run
consecutively to the sentences imposed in two earlier Cook
County cases: 2014-cr-8879 and 2015-cr-1230. Petitioner
states that he had been released on electronic monitoring in
the two Cook County cases on December 22, 2014, and that he
was still on electronic monitoring on September 16, 2016,
when he committed the offenses that formed the bases of the
DuPage County cases. Petition at 5. Petitioner asserts that
his consecutive sentence violated Illinois law.
filed habeas petitions in the DuPage County Circuit Court,
which denied the petitions on April 19, 2017. See
d/e 1-1 at 8-9. Petitioner also sought leave to file a
petition for a writ of habeas corpus in the Illinois Supreme
Court, which denied that motion on March 28, 2017.
See d/e 1-1 at 7.
2, 2017, Petitioner filed the § 2254 Petition at issue
herein. Petitioner argues that the DuPage County Circuit
Court erred when it ordered his sentences to run
consecutively to the earlier Cook County cases. He asserts
that Illinois law, as applied to Petitioner, establishes that
the Circuit Court should have ordered the sentences to run
concurrently to the earlier cases. According to Petitioner,
this error violated his Fourteenth Amendment Due Process
2254 provides for a federal writ of habeas corpus for a
person in state custody when the individual is being held in
violation of the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 2254(a). This Court's
review of state court decisions is limited by the
Antiterrorism and Effective Death Penalty Act. 28 U.S.C.
§ 2254. If a state court adjudicated a claim on the
merits, this Court can grant relief only if the state court
adjudication resulted in (1) “a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States”; or (2) “a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceedings.” 28 U.S.C. § 2254(d)(1), (d)(2). The
federal habeas court reviews the decision of the last state
court to rule on the merits of the petitioner's claim.
Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir. 2012).
Petition, Petitioner challenges the DuPage County Circuit
Court's decision to make his sentences run consecutively
to the Cook County sentences. See Petition at 3 (d/e
1). On December 20, 2017, Respondent, the U.S. Government,
filed a Motion to Dismiss Petition for a Writ of Habeas
Corpus (d/e 8). Respondent argues that the Petition should be
dismissed because Petitioner failed to exhaust his state
court remedies. Respondent notes that an appeal from the
DuPage County Circuit Court cases is pending in the Second
District of the Illinois Appellate Court. Respondent states
that, as of December 11, 2017, Petitioner's appellate
brief was due in April 2018. Motion to Dismiss at 2 (d/e 8).
This Court confirmed by phone call to the clerk's office
of the Second District that an appeal from the DuPage County
cases was still pending as of the issuance of this opinion.
See Jamison v. People, Nos. 2-16-1083, 2-16-1084 (
Ill. App. Ct.).
habeas petitioner must clear two procedural hurdles before
the Court will consider the merits of the petition: 1) the
petitioner must exhaust all state remedies and 2) he must not
procedurally default on his claim(s). The state courts must
have a “full and fair opportunity” to address the
petitioner's federal claims before those claims are
presented to the federal court. O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Therefore, before
seeking habeas relief, the petitioner must bring his claim(s)
through “one complete round of the State's
established appellate review process.” Id.;
accord Pole v. Randolph, 570 F.3d 922, 934 (7th Cir.
2009). In Illinois, one complete round entails presenting the
claim(s) to the circuit court, the district court, and in a
Petition for Leave to Appeal (PLA) to the Illinois Supreme
Court, which exercises discretion over the selection of cases
it reviews. O'Sullivan, 526 U.S. at 846.
Petitioner has not yet gone through one full round of state
court because the appeal from the sentencing court remains
neither Petitioner nor Respondent has indicated whether the
consecutive nature of the sentences is at issue before the
Second District. If the issue has been raised on appeal, the
claim will not be exhausted until the Illinois Supreme Court
declines the secondary appeal or accepts the PLA and resolves
other hand, if Petitioner does not raise the consecutive
issue on appeal, he will have procedurally defaulted on his
claim. Procedural default occurs when petitioner has not
exhausted the claims but the petitioner cannot return to the
state court. Guest v. McCann, 474 F.3d 926, 930 (7th
Cir. 2007) (finding that the petitioner who did not present
his claim to the state court and no longer had time to do so
had procedurally defaulted unless he could show ...