Opinion
No. 99 C 7112.
February 8, 2001.
MEMORANDUM OPINION AND ORDER
Walter J. Paredes petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1991, Paredes was convicted on federal cocaine distribution charges. Because he had two prior convictions, one federal and one Illinois, Judge James H. Alesia sentenced Paredes as a career offender to 30 years in prison. He is currently serving this sentence in the Federal Correctional Institution at Pekin, Illinois. In the pending petition, Paredes seeks an order declaring his 1986 Illinois conviction invalid, and thus unavailable as a basis for enhancement of his federal sentence. Specifically, Paredes claims the Illinois conviction was unconstitutional because it was: (1) in violation of the Interstate Agreement on Detainers ("IAD"), 730 ILC S 5/3-8-9; (2) th e product of a guilty plea "initiated" and "negotiated" by the state court judge; and (3) entered without a valid jury waiver.
Paredes cannot, however, collaterally attack his Illinois conviction in federal court under § 2254 because he is not "in custody" under that sentence. For this reason, as explained further below, the court dismisses his petition.
FACTUAL BACKGROUND
In January of 1984, Paredes was charged with possession of a controlled substance with intent to deliver in violation of Illinois law. See 725 ILCS 570/401(a)(2). (Petition for Writ of Habeas Corpus, Ground One, ¶¶ 1, 5.) On July 16, 1984, pursuant to the IAD, the Cook County Sheriff's Police Department ("Sheriff's Department") lodged a Detainer against Paredes with the United States Bureau of Prisons ("BOP"), where Paredes was confined as a result of an unrelated matter. (Id., Ground One, ¶ 2.) On September 23, 1984, Paredes was released from the custody of the BOP and taken into the custody of the Sheriff's Department. (Id., Ground One, ¶ 6.) On October 2, 1984, Judge Arthur Cieslik of the Circuit Court of Cook County, Chicago, Illinois, entered a continuance and remanded Paredes to the custody of the BOP. (Id., Ground One, at ¶ 7.) The record does not indicate who initiated the continuance; the "Prosecutor's Report on Disposition of Charges" merely states that "the defendant posted bail and the case was continued until November 1, 1984." (Exhibit A to Respondent's Rule 5 Submission, at A-15.)
This remand is the basis for Paredes' IAD claim. According to the Inter state Agreement on Detainers Act, 730 ILCS 5/ 3-8-9, "trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state [here, Illinois], but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." 730 ILCS 5/3-8-9, Art. IV(c). Moreover, "if trial is not had on any in dictment . . . prior to the prisoner's being returned to the original place of imprisonment [here, the federal prison] . . ., such indictment . . . shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." 730 ILC S 5/ 3-8-9, Art. IV(e).
More than a year later, on November 8, 1985, the Sheriff's Department filed a second Detainer against Paredes and he was again released in to the custody of the Sheriff's Department. (Id., Ground One, at ¶ 8.) Paredes claims to have filed a motion to dismiss the indictment based on Article IV(e) of the IAD. (Id., Ground One, at ¶ 9.) The court assumes that any such motion was denied or withdrawn because, on June 2, 1986, Paredes pleaded guilty to the possession charge. (Id., Ground One, at ¶ 10.) Paredes contends that while he initially pled "not guilty," Judge Cieslik "initiated" and "coerced" his guilty plea by offering a sentence of six years as opposed to the 25 year maximum he would likely receive if the case were to be tried. (Id.; July 15, 1999 Affidavit of Sam Adam (Paredes' trial attorney), at ¶ 3.) On June 9, 1986, the court sentenced Paredes to six years imprisonment. (Post-Conviction Order, No. 84-C-999, at 2.) Paredes did not seek review of his conviction for any purpose in the Illinois Appellate Court. (Id.)
Paredes completed th e sentence for his Illinois conviction on February 28, 1990; however, he did not remain a free man long. In 1991, Paredes was found guilty in federal court for distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and sentenced as a career offender to 30 years in prison. See Paredes v. United States, 983 F. Supp. 1193 (N.D. Ill. 1997). Paredes' status as a career offender was based in part on his 1986 Illinois conviction. See id. at 1201.
On June 10, 1996, Paredes filed a "Petition for Post-Conviction Relief or in the Alternative for Writ of Error Coram Nobis" in the Circuit Court of Cook County. (Exhibit A to Respondent's Rule 5 Submission, at A-7 through A-9.) In this post-conviction petition, Paredes asserted that: (1) his double jeopardy rights under the Fifth Amendment to the U.S. Constitution were violated because, under the IAD, the Circuit Court lacked jurisdiction to convict him; (2) his guilty plea was in valid because it had been initiated by Judge Cieslik; and (3) he had not entered into a written jury waiver and, thus, his right to trial by jury as guaranteed by the Sixth Amendment to the U.S. Constitution (and Article I, Section 8 of the Illinois Constitution) was violated. (Id.) On July 22, 1996, the court dismissed Paredes' petition as untimely because it had not been filed within three years from the date he was sentenced. (Exhibit B to Respondent's Rule 5 Submission ("Post-Conviction Order"), at 3.) The court further noted that Paredes could not receive post-conviction relief because he had already completed the sentence for his Illinois conviction. (Id., at 3 (citing People v. West, 145 Ill.2d 517, 584 N.E.2d 124 (1991)). Paredes then appealed the dismissal of his post-conviction petition to the Appellate Court of Illinois. (Exhibit C to Respondent's Rule 5 Submission.)
On March 17, 1997, before the Appellate Court had ruled on his post-conviction appeal, Paredes filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Central District of Illinois. The grounds raised in Paredes' habeas corpus petition were identical to those in his post-conviction petition, except that he challenged the Circuit Court's IAD violation under due process theories rather than as double jeopardy. As relief, Paredes requested that the court declare his state court conviction invalid, thus rendering it unavailable as a basis for enhancement of his federal sentence. Because Paredes had not exhausted his available state remedies, though, the court dismissed his petition without prejudice on July 30, 1997. See Order, No. 97-1041 (C.D.Ill. July 30, 1997).
At or near th e same time he filed his § 2254 petition, Paredes filed a § 2255 petition attacking his 1991 federal court conviction and sentence. Paredes claimed, inter alia, ineffective assistance of counsel at trial, on appeal, and at sentencing. With respect to sentencing, "Paredes argue[d] that one of the two prior felony convictions utilized to support the application of the Career Offender provision was unconstitutional, thus, it should not have been used for Career Offender purposes." Paredes, 983 F. Supp. at 1201. On December 3, 1997, Judge Alesia denied Paredes' § 2255 petition. The court noted that Paredes had failed to describe the "obvious constitutional flaws" that allegedly tainted his Illinois conviction, and therefore did not establish that his prior state court conviction was unconstitutional. Id.
On August 27, 1998, the Appellate Court dismissed Paredes' appeal of his post-conviction petition. (Exhibit C to Respondent's Rule 5 Submission.) That next day, Paredes' attorney wrote Paredes a letter in which he advised Paredes that a Petition For Leave to Appeal ("PLA") to the Illinois Supreme Court would be a "waste of time," and that he should instead wait 21 days, after which he will have satisfactorily exhausted his state remedies. (Exhibit B to the Paredes' Habeas Corpus Petition.) This advice, rendered prior to the Supreme Court's decision in O'Sullivan v. Boerckel, 526 U.S. 838 (1999) was correct at the time; Paredes followed it and did not file a PLA. Then, on August 30, 1999, Paredes refiled his § 2254 petition in the United States District Court for the Central District of Illinois. The court ordered the case transferred to the Northern District of Illinois which it believed to be the more appropriate forum. On March 6, 2000, the Respondent filed its Answer, arguing that each of Paredes' three claims (1) failed to allege a constitutional violation; and (2) was procedurally defaulted because Paredes never petitioned the Illinois Supreme Court for leave to appeal the dismissal of his post-conviction petition.
Paredes has filed a Motion to Compel Proper Answer by Respondent Pursuant to the Rules Governing Section 2254 Cases ("Motion to Compel"). [Doc. 16-1.] He claims that Respondent's Answer is incomplete because it relies on a procedural default defense as opposed to challenging the merits of Paredes' three claims. The court, how ever, finds Respondent's Answer to be adequate and therefore denies Paredes' motion.
DISCUSSION
As Respon dent observes, Paredes has procedurally defaulted on his claims. The court need not reach the issue, however, because the Seventh Circuit's recent decision in Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000) directs this court to dismiss Paredes' § 2254 petition for want of jurisdiction. In Talbott, the petitioner was convicted in federal court for possessing ammunition and his sentence was enhanced to over 22 years due to multiple prior felony convictions. Id. at 870. In the midst of serving his federal sentence, the petitioner filed a habeas corpus petition under § 2254 alleging that one of his prior state convictions should have been a misdemeanor instead of a felony. Id. at 870. For multiple reasons, the court denied the petitioner's application. Id. at 871. In doing so, it noted the following:
Talbott is mistaken in believing that he is entitled to wage a collateral attack in federal court directly against the Indiana sentence under 28 U.S.C. § 2254. He is not in custody under that sentence. See Maleng v. Cook, 490 U.S. 488 (1989). His custody is federal, his ultimate objection is to the length of his federal sentence, and proceedings contesting that sentence must be under § 2255.
Id. at 870. See also Ryan v. United States, 214 F.3d 877, 878 (7th Cir. 2000) ("The challenge to the state conviction was assigned to District Judge Bucklo, who dismissed it with the observation that Ryan was no longer `in custody' under the 1980 conviction and therefore could not see § 2254 to contest its validity.") (citing Maleng v. Cook, 490 U.S. 488, 492-93 (1989)).
If Paredes were to refile under § 2255, he would likely fare no better. First, given that the purported unconstitutionality of the prior state court conviction was raised by Paredes in his § 2255 petition and disposed of on the merits, any refiling under that section would almost assuredly constitute a successive motion. As such, before its merits could be considered, the district court would need "an order from the appropriate court of appeals authorizing the district court to consider the motion." Rule 9, Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255. See also Talbott, 226 F.3d at 868 ("Pr isoners who already have filed and lost a collateral at tack need this court's approval to launch another."). Second, according to Ryan v. United States, 214 F.3d 877 (7th Cir. 2000), the validity of a prior conviction used to enhance a federal sentence is not open to reexamination on collateral at tack, unless the defendant lacked counsel when convicted of the prior offense. Paredes was represented by counsel when convicted and has not, in this petition, claimed ineffective assistance of that counsel. Thus, it appears that Paredes would be unable to question the use of the state court conviction in a § 2255 motion to alter, amend or vacate his federal sentence.
CONCLUSION
For the foregoing reasons, Paredes' motion to compel (Doc. No. 16-1) is denied, and petition for a writ of habeas corpus is dismissed.