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Burnett v. Warden of Robinson Correctional Center

United States District Court, S.D. Illinois

October 28, 2019

TERRY BURNETT, # B-14533, Petitioner,



         On July 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.

         Burnett 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).

         Relevant Facts and Procedural History

         Burnett 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. 1, 28).

         Burnett 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.

         Burnett 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, [1] 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).

         Burnett filed the second state post-conviction petition on October 7, 2015, [2] 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), [3] at 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.

         According 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).

         As of the date of this Order, Burnett remains incarcerated on unrelated convictions.[4]

         Applicable Legal Standards

         1. Substantive Law

         This 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).

         Habeas 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 court proceeding.”

         A 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).

         Federal 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, 358 (2013)).

         Even an 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).

         2. Timeliness, Exhaustion and Procedural Default

         28 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 ...

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