United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
ROSENSTENGEL, CHIEF JUDGE:
11, 2013, Petitioner Terry Burnett pled guilty to two
offenses in Peoria County: unlawfully acquiring a controlled
substance (No. 11-CF-961) and burglary (No. 12-CF-113). The
verbal plea agreement provided for an aggregate 9-year
sentence, to be followed by 3 years of mandatory supervised
release. (Doc. 1, pp. 17-20). The sentence included 2-1/2
years on the drug offense, to be followed by 6-1/2 years for
burglary, which was mandated to be served consecutively.
(Doc. 1, p. 18). Burnett was to receive credit for time spent
in pretrial detention, including a 412-day period when he was
being held on the two pending charges simultaneously. (Doc.
1, pp. 19, 27-28, 55; Doc. 7, p. 2). His disagreement with
the amount of sentence credit awarded prompted this Habeas
Petition, filed pursuant to 28 U.S.C. § 2254.
claims that he was denied the benefit of his plea bargain
because he should have received pretrial credit for the 412
days against each of his consecutive sentences separately,
which would amount to two days of credit for each of those
days spent in pretrial custody. Respondent has answered,
arguing that the Petition is time-barred as to the judgment
in the 2011 drug case, and that the claim for double credit
lacks merit. (Doc. 7). Burnett has replied. (Doc. 14).
Facts and Procedural History
represented himself in the plea discussions, after having
discharged his public defender. (Doc. 1, p. 16-26). Burnett
agreed to a 9-year sentence “because that would put me
at doing 39 months instead of 45 months because I'm not
going to get no good time[.]” (Doc. 1, p. 17; see also
Doc. 14, p. 1). The prosecutor explained to the court that
Burnett would get 6-1/2 years on the burglary count,
mandatorily consecutive to the 2-1/2 years for the drug
count; three other counts would be dismissed. “He does
receive credit for time previously served on each of the
cases, and those dates are outlined in the orders, which I
did provide to the defendant and explain to him those
days.” (Doc. 1, p. 18-19). After accepting the plea and
imposing the agreed-upon sentence, the court reiterated,
“Those sentences will run consecutively. You'll get
credit for time served.” (Doc. 1, p. 24). The judgment
in the burglary case specified the dates for which Burnett
would receive credit as February 2 to March 14, 2012, and
June 8, 2012 through his transport to the Illinois Department
of Corrections (“IDOC”) after the July 11, 2013
date of judgment. (Doc. 1, p. 27). Similarly, the drug case
judgment provided for credit from October 9 to November 1,
2011, and from June 8, 2012 through transport to IDOC. (Doc.
was transported to IDOC on July 25, 2013. (Doc. 7, p. 2). In
light of the dates outlined in the two judgments, Burnett
claims he should have been given credit for 435 pretrial
custody days on the drug sentence (11-CF-961) and 454 days on
the burglary sentence (12-CF-113). (Doc. 1, p. 55). Burnett
and Respondent agree that 412 of the pretrial custody days
represented the simultaneous custody period from June 8, 2012
to July 25, 2013. (Doc. 1, p. 55; Doc. 7, p. 2). While
Burnett maintains he should get a separate 412 days'
credit against each individual sentence, the IDOC credited
these 412 days only once against Burnett's aggregate
sentence of 9 years.
did not appeal from the judgment in either case. He did,
however, file two petitions for state post-conviction relief.
(Doc. 7, p. 2). His first post-conviction petition, filed
July 11, 2014,  challenged only the burglary conviction
and did not raise the matter of sentence credit. (Doc. 8-1,
pp. 1-11). It was dismissed by the trial court. (Doc. 8-1, p.
13). On appeal from that dismissal, Burnett challenged the
assessment of fines, some of which were vacated by the
appellate court. (Doc. 8-2). Rehearing was denied on February
3, 2017, and Burnett did not seek review by the Illinois
Supreme Court. (Doc. 8-2, p. 1; Doc. 7, p. 2).
filed the second state post-conviction petition on October 7,
2015,  this time raising the
benefit-of-the-bargain challenge to both judgments. (Doc.
15-1, pp. 26, 36-38). After a hearing, the trial court
granted the state's motion to dismiss the petition on May
21, 2016. (Doc. 1, pp. 34-43, 45). Burnett appealed, and the
matter was still pending before the Illinois Appellate Court,
Third District (Nos. 3-16-0317, 3-16-0318, 3-16-0319),
the time he filed the instant habeas Petition. (Doc. 1, pp.
2, 48, 50, 52, 54). Neither party has notified the Court of
any resolution to the consolidated appeals, and the Court was
unable to locate an order disposing of the matter.
to Burnett's own calculation, his release date from the
9-year sentence should have been August 16, 2015, if he had
been given the sentence credit he believed he was due. (Doc.
1, p. 55). However, he notes that he “spent [his]
parole time in prison, ” Id., because he was
“violated at the door because of past
convictions.” (Doc. 28, p. 1). Even so, he claims that
he should have completed his mandatory supervised release
time by February 16, 2017. (Doc. 1, p. 55). In his Reply,
filed on July 12, 2017, Burnett stated that his release date
had been set for April 5, 2018. (Doc. 14, p. 4).
the date of this Order, Burnett remains incarcerated on
Habeas Petition is subject to the provisions of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”). “The Antiterrorism and Effective
Death Penalty Act of 1996 modified a federal habeas
court's role in reviewing state prisoner applications in
order to prevent federal habeas ‘retrials' and to
ensure that state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 535
U.S. 685, 693 (2002).
is not merely another round of appellate review. 28
U.S.C. § 2254(d) restricts habeas relief to cases where
the state court determination “resulted in 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 “a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State
judgment is “contrary to” Supreme Court precedent
if the state court “contradicts the governing law set
forth in [Supreme Court] cases.” Coleman v.
Hardy, 690 F.3d 811, 814 (7th Cir. 2012) (citing
Williams v. Taylor, 529 U.S. 362, 405 (2000)). A
state court decision is an “unreasonable application
of” clearly established federal law if the state court
“identifies the correct governing legal rule from
[Supreme Court] cases but unreasonably applies it to the
facts of the particular state prisoner's case.”
Coleman, 690 F.3d at 814 (quoting Williams,
529 U.S. at 407).
habeas review serves as “a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Harrington v. Richter, 562 U.S. 86,
102-03 (2011) (quoting Jackson v. Virginia, 443 U.S.
307, 332, n.5 (1979) (Stevens, J., concurring)). The Supreme
Court has repeatedly emphasized that the Section 2254(d)
standard “is intentionally ‘difficult to
meet.'” Woods v. Donald, 135 S.Ct. 1372,
1376 (2015) (quoting White v. Woodall, 572 U.S. 415,
419 (2014), and Metrish v. Lancaster, 569 U.S. 351,
incorrect or erroneous application of the federal precedent
will not justify habeas relief; rather, “[a]s a
condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S.
at 103. “A state court's decision is reasonable,
even if incorrect in our independent judgment, so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.'”
McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir.
2017) (internal citations omitted). For habeas relief to be
granted, the state court's application of federal
precedent must have been “objectively unreasonable,
” meaning “something like lying well outside the
boundaries of permissible differences of opinion.”
Jackson v. Frank, 348 F.3d 658, 662 (7th Cir. 2003)
(internal citations omitted).
Timeliness, Exhaustion and Procedural Default
U.S.C. § 2244 creates a one-year limitation period for
filing a petition for writ of habeas corpus. Under 28 U.S.C.
§ 2244(d)(1), a person convicted in state court must
file his ...