Opinion
No. 02 C 8545
August 12, 2003
OPINION
Petitioner Albrice Fortenberry is serving thirty years at the Dixon Correctional Center for the murder of Sonya Baldwin, to which he pleaded guilty on November 16, 1993. Fortenberry neither appealed the conviction nor moved to set aside the guilty plea, but he filed a pro se petition for post-conviction relief on March 13, 1995, a supplemental petition on May 31, 1995, and an amended petition on August 8, 1995, in which he claimed ineffective assistance of counsel. Counsel was then appointed, and counsel filed a supplemental petition for post-conviction relief on November 18, 1999, claiming that Fortenberry, who was taking psychotropic drugs at the time of his guilty plea, had been denied due process when he was not given a fitness hearing before pleading guilty. Fortenberry filed a further pro se supplemental petition for post-conviction relief on June 13, 2000, in which he presented further arguments relating to his fitness hearing claim.
On November 1, 2000, the Circuit Court denied post-conviction relief. Counsel then filed a Finley motion to withdraw, but Fortenberry appealed the denial claiming ineffective assistance of counsel. The Appellate Court granted the motion to withdraw and affirmed the denial of post-conviction relief on July 26, 2002. Fortenberry did not file a petition for leave to appeal to the Illinois Supreme Court but later filed a document entitled "Post-Conviction: Alternative Habeas Corpus Motion to Enforce Plea Agreement" on April 19, 2002, that is still pending in the Illinois Circuit Court. Before any Illinois court had ruled on his post-conviction petition, Fortenberry filed a federal habeas petition on May 22, 2000, but this petition was denied without prejudice on February 26, 2001, for failure to exhaust state claims. He filed the instant petition on November 22, 2002.
Fortenberry raises six claims in his petition, none of which has been decided by a state trial court. Therefore, he has failed to exhaust state claims as required under 28 U.S.C. § 2254(b)(1)(A). Fortenberry argues that he can bypass state courts because he cannot get released or have his claim fairly heard, but he is mistaken. Although there is one exception to the exhaustion rule, see 28 U.S.C. § 2254(b)(1)(B), Fortenberry cannot take advantage of it because he has an available state option inasmuch as he currently has a pending collateral proceeding in the Illinois Circuit Court attempting to enforce his plea agreement. Moreover, nothing in his claims suggests that Illinois' post-conviction hearing statute is insufficient to protect his rights. If the Illinois courts choose to accept his new collateral attack, then he has an available State corrective process. If they do not, then while he may be able to claim a lack of a corrective process, he will instead be charged with a procedural default for failing to have presented these claims in his first post-conviction petition, and will need to show cause and prejudice for the default. See Stevens v. Delaware Correctional Center, 295 F.3d 361, 369 (3rd Cir. 2002). Analysis of whether Fortenberry could meet these exceptions, however, is premature at this time.
Notwithstanding the failure to exhaust, I may still deny a claim on the merits, and I do so here. See 28 U.S.C. § 2254(b)(2). Among his six claims, Fortenberry claims that the addition of a three-year term of mandatory supervised release (MSR) to his thirty-year sentence was a breach of contract and that the sentencing judge violated Illinois Supreme Court Rule 402 at his plea hearing. However, both of the aforementioned claims are clearly based on state law, and thus are not cognizable in the habeas proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Fortenberry also claims that his guilty plea was not knowing and intelligent because the MSR addition was not discussed during the plea negotiations, but MSR is mandatory and thus non-negotiable in a plea agreement, so the fact that it was not mentioned in the agreement is not noteworthy. See People v. Morgan, 470 N.E.2d 1118, 1120 (Ill.App.Ct. 1984). Finally, Fortenberry claims that MSR violates due process and that the Illinois MSR statute violates the Fifth, Fourteenth, and Fifteenth amendments, and is a violation of separation of powers. But MSR is added to all sentences in Illinois by statute, see 730 ILCS 5/5-8-1(d), and it does not violate Fortenberry's rights, cf. Nance v. Lane, 663 F. Supp. 33, 35 (N.D.Ill. 1987).
Accordingly, Fortenberry's Petition for Writ of Habeas Corpus is DENIED.