Tllinois Supreme Court’s denial of leave to appeal) adverted in
part to asserted violations of due process and equal protection
(purportedly implicating the United States Constitution), to the
Code of Federal Regulations (inapplicable of course to a state
prisoner serving a state sentence), to the Ex Post Facto Clause
(also patently inapplicable) and to double jeopardy, none of such
claims has any warrant under the standard prescribed by Section
2254 (a)~--that Claybourn must be “in custody in violation of the
Constitutional or laws or treaties of the United States.”
Indeed, because his claims have been adjudicated on the merits by
having been dismissed in the state court proceedings, Claybourn
clearly fails the test set out in Section 2254 (d):
(ad) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim--
(1) 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
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.
Those considerations alone require dismissal of the
Petition. But it seems certain that dismissal is also mandated

on a second and unrelated ground. It should be remembered that

Claybourn’s rearrest took place nearly six years ago, and he was


On that score this District Court is competent to deal with
the matter, because Section 2241(d) gives Claybourn the
alternative of filing his Petition either “in the district court
for the district wherein such person is in custody” (which would
be the United States District Court for the Southern District of
Tllinois) or the place of Claybourn’s original conviction, which
is disclosed by Petition §1 to have been the Cook County Circuit
Court (within this judicial district). And the rest of the
Petition and its exhibits provide sufficient information with
which to address Claybourn’s substantive contention.

Claybourn’s September 13, 1999 filing of his Petition for
Writ of Mandamus in the Circuit Court of the First Judicial
Circuit, Johnson County, Illinois sets out the gravamen of his
claim: After he had been released on what was then believed to
be parole (Mandamus Petition 43) and was then rearrested because
that release should not have taken place (id. 94), he was given a
new calculation sheet that treated the 4 months and 22 days
during which he had been on liberty as “lost time on bond” (id.
q5).

What Claybourn is really complaining about is that the
authorities’ correction of what was said to be a mistake was in
violation of the Illinois law that prescribes a prisoner’s
mandatory release date. Even though his state court mandamus
effort (which was rejected by the Circuit Court and then the
Illinois Appellate Court for the Fifth District, followed by the

3


immediately “told that his release on parol [sic] was a mistake”
and “that the 4 months and 22 day [sic] that he was out on parle
[sic] will be considered as lost time” (these quotations are from
Claybourn’s October 3, 1997 institutional grievance included in
Petition Ex. A, confirmed by his allegations in Petition Gai (A)).
Even though his grievance was promptly denied on October 21, 1997
by Department’s Administrative Review Board as “beyond
jurisdiction of IDoc” (Petition Ex. B), Claybourn has identified
no steps whatever on his part to challenge that administrative
determination by any judicial proceeding available to him until
nearly two years later--when he launched his September 1999
filing of his state court Petition for Writ of Mandamus (Petition
Ex. C).

In that respect, Section 2244 was amended in 1996 to bar
tardy efforts such as Claybourn’s to turn to the federal courts
for habeas relief. Section 2244 (d) (1) set a one-year limitation
period from the latest of four specified dates for any such
filing, followed by this Section 2244 (d) (2) prescription of a
tolling period to permit a petitioner to comply with the
exhaust ion-of-state-remedies requirement of Section 2254 (b) (1):

(2) The time during which a properly filed application

for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of

limitation under this subsection.

But that tolling provision is activated only by a properly filed
state court application, a provision that has been given

5


Minute Orter Form (06/97) >

O (a bored States District Court, Northern District of Illinois

ry)
if Absis i iti e i er
saneetfeigee | Milton. Shadut Sting sna Ot
CASE NUMBER 00 C 7896 DATE 12/26/00
CASE USA ex rel. Percy Claybourn v. IL Dept of Corrections
TITLE

of the motion being presented.)

[in the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

() oO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due :

G) a Answer brief to motion due___. Reply to answer brief due__.

(4) oO Ruling/Hearing on___set for_at

(5) im Status hearing(held/continued to] [set for/re-set for] on setfor at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on _ set for_ at

(7) im} Trial[set for/re-set for] on__at

(8) o [Bench/Jury trial] [Hearing] held/continued to__at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) CGeneral Rule 21 CI FRCP41(a)(1) 1 FRCP4I(a)(2).

qo) [Other docket entry} Enter Memorandum Opinion and Order. Petitioner’s request to proceed in

Rule 4). That calls for summary dismissal of the Petition, and this Court so orders.

al) a [For further detail see order (on reverse side offattached to) the original minute order.]

forma pauperis is denied. The trust fund officer at Shawnee Correctional Center is ordered forthwith to
remit a check of $5 and pay it directly to the Clerk of this District Court. Accordingly “it plainly appears
from the face of the petition that the petitioner is not entitled to relief in the district court” (section 2254

No notices required, advised in open court.

No notices required
number of notices.

X_| Notices mailed by judge’s staff.

NEC 2.8,2000

5
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Notified counsel by telephone.

Dogketing to mail notices.

Mail AO 450 form. o

Copy to judge/magistrate judge.

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meaningful teeth by our Court of Appeals to prevent any untimely
or stale resort to the state courts from extending the prescribed

limitation period (see, e.g., Fernandez v. Sternes, 227 F.3d 977

7" Cir. 2000) (and cases cited there)).

It is true that Claybourn’s mandamus effort came to an end
less than a year ago when the Illinois Supreme Court rejected his
petition for leave to appeal on June 22, 2000 (Petition 410 (D)
and its Ex. F). But any bootstrapping from that appellate
rejection of such a late-filed mandamus proceeding is
impermissible under the principles referred to in the preceding
paragraph, for the belated mandamus petition can scarcely be
termed “properly filed” in the sense taught by the caselaw.

Hence the Petition must also be dismissed as time-barred .?

Accordingly “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is
not entitled to relief in the district court” (Section 2254
Rule 4). That calls for the summary dismissal of the Petition
(id.), and this Court so orders. That however does not alter the

earlier-ordered payment of the $5 filing fee.

CM. DG. ctr

Milton I. Shadur
Senior United States District Judge

Date: December 26, 2000

° It should again be noted that dismissal is called for
even if this line of analysis were not to be sustained.

6


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.
PERCY CLAYBOURN #N40282,

Petitioner,

)
)
)
)
)
v. ) No. 00 C 7896
)
ILLINOIS DEPARTMENT OF CORRECTIONS, )

)

)

Respondent. Pm A nara
TED
MEMORANDUM OPINION AND ORDER Deu g
EU 28 2009

Percy Claybourn (“Claybourn”) has filed a self-prepared
Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C.
§2254,* challenging the Illinois prison authorities’
determination that he is not to receive credit toward his release
date for a period of 4 months and 22 days during which he was at
liberty as the result of what those authorities say was his
mistaken October 14, 1994 release on parole from a state criminal
sentence that he was then serving (and is therefore still
serving). On March 10, 1995 Claybourn was rearrested and told
that his release had been in error, and he has been back in
custody ever since.

Before this Court turns to Claybourn’s federal habeas claim,
it briefly addresses his accompanying request to proceed in forma
pauperis. Because Claybourn obviously does not realize that the

only fee required to be paid by a Section 2254 petitioner is the

1 All further references to Title 28's provisions will
simply take the form “Section--.”

4


modest sum of $5, that request is denied and the authorities at
Shawnee Correctional Center (“Shawnee,” where Claybourn is now in
custody) are ordered forthwith to remit a check for that amount
out of his trust fund account there? and to pay it directly to
the Clerk of this District Court, mailing the payment to this
address:

Clerk, United States District Court

219 South Dearborn Street

Chicago, Illinois 60604

Attention: Fiscal Department
and clearly identifying Claybourn’s name and the 00 C 7896 case
number assigned to this action. To implement this requirement,
the Clerk shall send a copy of this memorandum opinion and order
to the Shawnee trust fund officer.

On another preliminary procedural matter, Rule 2(a) of the
Rules Governing Section 2254 Cases in the United States District
Courts requires the Shawnee warden (because Claybourn is in
custody there) to be named as respondent, in place of Claybourn’s
mistaken designation of the Illinois Department of Corrections
(“Department”). But that readily correctible error need not be

dealt with, because the Petition fails on substantive grounds in

any event.

? Although Claybourn maintains the trust fund account at a
minimal level, the printout that he has submitted reflects
monthly payroll deposits of $15 from his prison job. So if the
current account level is under $5, the fee shall be paid as soon
as the next payroll amount comes in.

2