Opinion
99 C 7746
May 4, 2000
MEMORANDUM AND ORDER
Pro se petitioner Steven McMillen's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, the petition is denied.
Background
Following the entry of guilty pleas in two Circuit Court of Cook County proceedings — case no. 87 CR 6029 (attempted murder, rape, and aggravated kidnaping) and case no. 89 CR 0131901 (aggravated criminal sexual assault, armed violence, and aggravated kidnaping) — McMillen was sentenced to two consecutive sixteen-year prison terms. Specifically, McMillen was sentenced in case no. 87 CR 6029 on January 5, 1989, and was sentenced in case no. 89 CR 0131901 on March 25, 1991.
Stepping back in time to the beginning of McMillen's custody, the relevant dates are as follows: McMillen was held in pretrial custody in case no. 87 CR 6029 from May 13, 1984 to May 25, 1987 (when he posted bond). He remained out on bond until January 5, 1989, when he was taken into custody for case no. 89 CR 013901.
When McMillen was sentenced in his second case) the trial court did not credit him with 810 days ( i.e., the number of days he had been held in pretrial custody prior to sentencing for his second case). McMillen successfully sought correction of this error when he filed a nunc pro tunc petition in the Circuit Court of Cook County to amend the mittimus. McMillen subsequently filed a motion for a supervisory order with the Illinois Supreme Court contending that the Illinois Department of Corrections ("IDOC")) had refused to credit him with the 810 days ordered by the Circuit Court.
On October 5, 1999, the Illinois Supreme Court issued an order which provided, in pertinent part, that:
IT IS ORDERED that the motion for supervisory order is interpreted to be a motion for leave to file a petition for writ of mandamus. The motion for leave to file a petition for writ of mandamus is allowed. The respondents are ordered to recalculate the sentence of petitioner Steven McMillen, a/k/a Steve Mahrin, N-50339, to credit 810 days as credit for time served against the sentence imposed by the Circuit Court of Cook County in People v. Mahrin, Cook County No. 89 CR 01319-01, pursuant to the corrected mittimus of May 7, 1997.
This court received McMillen's § 2254 petition on November 26, 1999. In his petition, McMillen raises a single claim: that IDOC violated his due process rights when it failed to credit him with 810 days as ordered by the Illinois Supreme Court.
Exhaustion and Procedural Default
The essence of the relief requested in McMillen's § 2254 petition is that this court should order IDOC to comply with the Illinois Supreme Court's mandamus order. Because McMillen filed his petition well after the effective date of the Antiterrorism and Effective Death Penalty Act, that statute governs his claims. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). The court begins its consideration of McMillen's petition with the well-established principle that the court may only address the merits of McMillen's claims if he exhausted his state remedies and avoided procedural default under Illinois law. Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996).
A petitioner has failed to exhaust if he seeks to raise issues that have not been considered by the state court but still may be presented. Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). Claims are exhausted when they are presented to the highest court for a ruling on the merits or when no means of pursuing review remain available. 28 U.S.C. § 2254(c). In turn, procedural default occurs when a petitioner fails to assert a claim that could have been brought in the state court and the time for asserting the claim has passed. Resnover v. Pearson, 965 F.2d at 1458. This happens if the petitioner fails to pursue all appeals required by state law, Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991), or fails to fairly present his federal claims to the state court, Resnover v. Pearson, 965 F.2d at 1458-59. Procedural default also occurs when the state court did not address the petitioner's federal claims because he failed to meet an independent and adequate state procedural requirement in presenting the claim. Coleman v. Thompson, 501 U.S. at 729; Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
The respondent asserts that McMillen exhausted his state court remedies because he presented his 810 days of good time credit argument to the Illinois Supreme Court. Filing a petition for a writ of mandamus with the Illinois Supreme Court is the proper way to remedy an alleged failure of IDOC to award sentence credits. Toney v. Franzen, 687 F.2d 1016, 1021 (7th Cir. 1982); People ex rel. Morrison v. Sielaff, 58 Ill.2d 91, 316 N.E.2d 769 (Ill. 1974). Does the fact that McMillen did not initiate state court contempt proceedings with the Illinois Supreme Court mean that he has nevertheless failed to exhaust? The answer to this question is "no," as the Seventh Circuit has held that § 2254's exhaustion requirement does not obligate "a successful prisoner to secure by supplemental coercive action rights already won in state court." Toney v. Franzen, 687 F, 2d at 1023.
It is important to note, however, that McMillen's state court filing, which resulted in the issuance of the order at issue in this proceeding, did not couch his claim in terms of a federal constitutional right. See McMillen's Illinois Supreme Court brief attached as Exhibit B to the Respondent's Answer. Instead, McMillen's motion set forth factual reasons why the lower court failed to credit him fully and asserted in passing that the trial court's failure to calculate his good time credit correctly violated an unspecified portion of the Illinois Constitution.
The Seventh Circuit has held that the exhaustion provision "requires nothing more than that the federal question be presented to the state courts and imposes no obligation to move a state court to revise its judgment." Toney v. Franzen, 687 F.2d at 1023. In other words, "[a] habeas petitioner must provide the state courts with a fair opportunity to apply constitutional principles and correct any constitutional error committed by the trial court." United States ex. rel Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir. 1984) (citations omitted). Thus, to survive procedural default, the operative facts and controlling legal principles that form the basis of the constitutional claim must be fairly presented to the state courts. Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir. 1992), citing Picard v. Connor, 404 U.S. 270, 277 (1971).
"The sufficiency with which the applicant's legal theory was presented . . . has much bedeviled courts." Verdin v. O'Leary, 972 F.2d at 1474. Thus, raising a similar state-law claim in the state court proceedings is not enough to avoid procedural default. Id. Similarly, arguing that all the facts necessary to support a federal claim were presented to the state court is not enough to survive procedural default. Id. Instead, while a petitioner need not cite "book and verse of the federal constitution" to present a constitutional claim adequately, he must nevertheless "raise the red flag of constitutional breach" in state court or his claims will be barred. Id. at 1474-75.
A petitioner fairly presents a federal claim to the state court if his arguments in the state court proceedings either: (1) relied on pertinent federal cases employing constitutional analysis; (2) relied on state cases applying constitutional analysis to a similar factual situation; (3) asserted the claim in terms so particular as to call to mind a specific constitutional right; or (4) alleged a pattern of facts that is well within the mainstream of constitutional litigation. Id. at 1473-74. If the petitioner fails to satisfy at least one of these factors and the state does not concede that the claim is federal, this court will not consider the state courts to have had a fair opportunity to consider the claim. Id. at 1474. Moreover, "the presence of any one of those factors, particularly factors (1) or (2), does not automatically avoid a waiver; the court must consider the specific facts of each case." Id.
Here, McMillen indisputably did not present a federal due process claim to the Illinois Supreme Court. Nevertheless, statutory good time credit is a liberty interest protected by the Due Process Clause, Hamilton v. O'Leary, 976 F.2d 341, 344 (7th Cir. 1992). and habeas corpus is the appropriate remedy for extending a term of confinement in violation of the Constitution. Evans v. McBride, 94 F.3d 1062 (7th Cir. 1996). Moreover, even if McMillen had raised specific federal due process arguments, the Illinois Supreme Court would not have reached them, as it granted McMillen's petition and hence did not need to consider whether denying that petition would violate McMillen's federal constitutional rights. Finally, the respondent does not assert that McMillen's claims are procedurally defaulted or claim that his claims are not federal. See Moleterno v. Nelson, 114 F.3d 629, 634 (7th Cir. 1997). Hence, the court will reach the merits of McMillen's petition.
McMillen's Good Time Credits
Because McMullen does not claim that the state court's decision was based on an unreasonable determination of the facts, he is entitled to habeas relief if the state court's ruling "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 . . ." 28 U.S.C. § 2254(d)(1). See Williams v. Taylor, No. 98-8384, 2000 WL 385369 (Apr. 18, 2000). The respondent asserts that McMillen's constitutional rights remain inviolate because its computation method results in an earlier release date than McMillen's method.
As noted above, McMillen is serving two consecutive sixteen year sentences. IDOC has decided to treat these sentences as one consecutive thirty-two year sentence. See Garlotte v. Ford, 515 U.S. 39, 40 (1995) (consecutive sentences are "a continuous stream"); 730 ILCS 5/5-8-4(e)(4). According to the respondent, McMillen's custody date for this aggregated thirty-two year sentence is December 27, 1985. The respondent appears to have calculated this date by subtracting 3 years and 12 days (representing the time McMillen spent in custody prior to sentencing in the first case) from January 5, 1989 (the sentencing date in the first case).
The respondent states that, using the December 27, 1985, custody date, McMillen's release date is December 22, 2001. The respondent also asserts that, if IDOC subtracts 810 days from the sentencing date in the second case, McMillen would have a custody date of December 25, 1988, for the second sixteen year sentence. This custody date results in a release date of December 20, 2004, which is obviously later than December 22, 2001. McMillen, on the other hand, appears to be claiming that he is entitled to an additional 810 days of credit for his second sixteen year sentence above and beyond the credit he was awarded for his first sixteen year sentence.
McMillen's disagreement with IDOC's calculations appears to arise from the fact that the Illinois Supreme Court did not address McMillen's other sentence when it ordered the 810 day credit. As noted above, McMillen has a combined thirty-two year sentence, which he began serving on January 5, 1989, when he was taken into custody in his second case. IDOC credited McMillen with three years and twelve days (representing the time he was held in pretrial custody in the first case), resulting in a December 27, 1985 custody date.
Because McMillen began to serve his thirty-two year combined sentence on January 5, 1989, he is not entitled to subtract an additional 810 days from that sentence, as he would have been able to do if he only had a single sentence. Put another way, credit for incarceration time prior to sentencing is simply not appropriate here since McMillen was actually serving his combined thirty-two year sentence at the time he served the disputed 810 days. In other words, this is not a situation where an individual spends time in pretrial detention and then is entitled to subtract that time off once the actual sentence commences. McMillen cannot have it both ways: he must choose between the December 27, 1985, custody date, along with a credit for time spent prior to sentencing in the first case or the December 25, 1988, custody date, along with a credit for time spent prior to sentencing in the second case.
Accordingly, IDOC's interpretation of the Illinois Supreme Court order does not violate McMillen's federal due process rights as it is more favorable to him than the alternative interpretation of the order ( i.e., a December 25, 1988 custody date), and McMillen is not entitled to additional credit for incarceration time prior to sentencing. The court notes that, if McMillen wants to extend the time he is incarcerated by forcing IDOC to use the later custody date, he will have to initiate contempt proceedings before the Illinois Supreme Court as this court may only consider whether the state's actions violate McMillen's federal constitutional rights. Because we find that IDOC's interpretation does not do so, as it gets McMillen out sooner than the only other available option, it does not violate his due process rights.
Conclusion
Pro se petitioner Steven McMillen's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. The clerk is directed to enter a Rule 58 judgment and terminate this case.