Supp. 287 (N.D.N.Y. 1998) (analyzing a § 2241 habeas petition alleging an equal protection claim
based on race for denial of the petitioner’s request for a transfer under the Convention), aff'd, 171
F.3d 148 (2nd Cir. 1999). Again, it is not the court’s duty to construct Rickard’s argument for him.
Doherty, 75 F.3d at 324. Accordingly, the court finds that Rickard waived the equal protection
arguments that he intended to base on other state’s laws, age and alienage.

Moreover, Rickard quickly retreats from his age and alienage assertion by arguing that even
ifhe is not a member of a protected class, Illinois still violated his equal protection (and due process)
rights because its actions are not rationally related to a legitimate state interest. (Reply at pg. 7.)
Rickard cites no authority for his “class of one” argument, but such claims are cognizable. See

Village of Willowbrook v. Olech, 120 S. Ct. 1073, 1074-75 (2000). In Olech, the Supreme Court

held that a § 1983 plaintiff can pursue a class of one equal protection claim if the state government
intentionally treats the plaintiff differently from others similarly situated, and there is no rational
basis for the different treatment. Id. Assuming, without deciding, that class of one equal protection
claim is cognizable under § 2254, see Wong, 999 F. Supp. at 290 (collecting authority), Rickard fails
to demonstrate that the necessary elements exist. He presents no evidence of any other similarly
situated prisoners, and no evidence that the state of Illinois intentionally treated him differently from
those other similarly situated prisoners. This failure to present evidence is a waiver of the claim.

ii. The Convention Imparts No Federal Right to a Transfer and No
Duty on the State of Illinois to Convert Rickard’s Sentence:

Rickard correctly asserts that a treaty entered into by the United States is federal Jaw and is

cloaked in the Supremacy Clause of Article VI of the United States Constitution. Whitney v.

actions and the Fourteenth Amendment.

19


both § 2254 and civil rights laws, such as § 1983.1! Compare Moran, 218 F.3d at 650-51 (holding
that a state prisoner’s federal challenge to the fact or duration of custody is a habeas claim, and any
other challenge is a civil rights claim). Therefore, the court will analyze Rickard’s request to have
his sentence converted under both statutes. The court applies § 2254 to Rickard’s request for a
determinate sentence that takes into account all mitigating factors, and is therefore a shorter sentence.

See Moran, 218 F.3d at 50-51; Heidelberg, 163 F.3d at 1026; Graham, 922 F.2d at 381. To the

extent Rickard has done so, the court applies § 1983 to Rickard’s request to have his sentence
converted to an 80 year determinate sentence to facilitate transfer,

1. The § 1983 Claims Are Not Properly Before the Court:

The Prisoner Litigation Reform Act (“PLRA”), which applies to prisoner § 1983 suits, and
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which governs § 2254 claims, “have

different procedural requirements and different potential consequences.” Moran, 218 F.3d at 65 1;

"Explicit in the Seventh Circuit’s order is that Rickard’s current request to convert his
sentence, while cognizable under § 2254, is not second or successive to his 1987 habeas petition
attacking his conviction, which was denied on the merits. Contra Talbott v. Indiana, 226 F.3d 866,
869 (7th Cir. 2000) (noting that “[fJederal law allows only one round of collateral review as of. right,
so prisoners should choose their issues wisely.”); Potts v. United States, 210 F.3d 770,770 (7th Cir.
2000) (noting that a prisoner is entitled to only one opportunity for collateral review on the merits);
Johnson v. United States, 196 F.3d 802, 804 (7th Cir. 1999) (describing the paradigm second or
successive collateral attack).

Assuming that setting Rickard’s sentence at the maximum 80 year term to facilitate transfer
is a civil rights claim rather than a habeas claim, he did not seek that remedy in case number 99 C
4457, nor does he seek it in this case. His request was, and is, to have his sentence converted from
an indeterminate sentence of 40-80 years to a determinate sentence that gives him credit for his age,
time served, good behavior, and educational efforts, while keeping open the possibility that he may
be paroled at any time. In this light, Rickard’s request is analogous to a state prisoner asking a
federal court to order his parole or set a definite release date that is shorter than his maximum
sentence. Compare Heidelberg, 163 F.3d at 1026-27 (habeas case holding that Illinois state prisoners
do not have a liberty interest in obtaining parole).

13


1300 (dicta noting that the Convention is a question of comity between nations and not a personal
tight of the prisoner); Bagguley v. Bush, 953 F.2d 660, 661-63 (D.C. Cir. 1991) {analyzing the
discretionary nature of the Convention and holding that it does not require the international transfer
of prisoner upon request); Coleman v. Reno, 91 F. Supp. 2d 130, 132 (D.D.C. 2000) (transfer under
the Convention is discretionary); Brancaccio v. Reno, 964 F. Supp. 1, 3 (D.D.C. 1997) (finding no
violation of the Convention in the denial of a transfer request); Hart, 1996 WL 371430 at * 2 (no
liberty interest in a transfer under the Convention); Bagguley v. Matthews, No. 88-3486-R, 1992 WL
160945, *2 (D. Kan. June 3, 1992) (same); Wong v. Warden, 999 F. Supp. 287, 289-90 W.DNY.
1998) (same, but analyzing an alleged violation of equal protection), aff'd, 171 F.3d 148; cf.
Marquez-Ramos v. Reno, 69 F.3d 477, 480-81 (10th Cir. 1995) (analyzing a similar treaty and
finding no liberty interest in transfer); Hogan, 920 F.2d at 8 (same). Rickard cites no contrary
authority. Accordingly, the court rejects Rickard’s argument and finds that his § 2254 petition is
without merit.
Ill. CONCLUSION

For the foregoing reasons, the court denies Rickard’s petition for writ of mandamus,

dismisses without prejudice all claims that are cognizable under 42 U.S.C. § 1983, and denies on

their merits all claims that arise under 28 U.S.C. § 2254.

" DiimlaK oogh Ae

CHARLES RONALD NORGLEAR. J judge

Z y Yj y/ United States District Court
DATED:

IT IS SO ORDERED.

23


Justice nor the Illinois Department of Corrections responded to his interest. (See Am. Pet. Ex. 24
pg. 4 (marked “Page Three od [sic] seven pages”).)*

In April 1996, Rickard learned that his step-mother, who lived in England, was dying.* Out
of a desire to see her before she died, Rickard began efforts to obtain a transfer to the United
Kingdom. Rickard claims that he first made an oral request (he does not say of whom) for voluntary
repatriation to the United Kingdom on compassionate grounds.

On June 12, 1996, Rickard made a written request to the Illinois Department of Corrections
(IDOC”) to be transferred to the United Kingdom pursuant to the Convention. In July 1996,
Rickard sent another letter to IDOC explaining his desire to see his step-mother before she died. At
the time Rickard initiated these efforts to be transferred, he had pending two lawsuits against IDOC
concerning the alleged loss of his radio and a medicaid issue. In August 1996, IDOC informed
Rickard that it would not process his transfer request until these two lawsuits were resolved. (See
Am. Pet. Ex. 29.) Rickard responded by voluntarily dismissing both suits. (See id.) At the time of
dismissal, one suit was pending in the IHinois Court of Claims, and the other was pending in the
Seventh Circuit. (See id.)

In January 1997, IDOC indicated its support for Rickard’s transfer, and sent his application

to the United States Department of Justice for its review and approval. On August 8, 1997, the

*These facts cast doubt on the Seventh Circuit’s observation that Rickard could not have
raised the Convention as a basis for habeas relief in his 1987 habeas petition. (See Am. Pet. Appx.
A.) The Convention became effective in 1985, and Rickard had notice of its existence. Thus, the
Convention was available to Rickard at the time he sought habeas relief in 1987. He did not raise
the argument at that time, but it was available to him.

‘Rickard’s brief refers to both his mother and his step-mother as being ill, but it appears that
it was his step-mother who was ill in 1996. Rickard’s step-mother died in 1997.

4


Robertson, 124 U.S. 190, 194 (1888) (holding that under the Constitution a treaty is on equal footing

with federal legislation); see also United States v. Chaparro-Alcantara, 226 F.3d 616, 621 (7th Cir.

2000) (and cases cited therein). Past this, Rickard’s argument falls apart. He claims that the
Convention gives him a right to be transferred, and that Illinois has an obligation to take all steps
necessary, including converting his sentence, so as to not infringe his right to a transfer. Neither
proposition exists in the law.

To begin, Illinois is not a party to the Convention, and is not bound by any of its terms. See
Hogan v. Koenig, 920 F.2d 6, 8 (9th Cir. 1990) (analyzing a similar treaty between the United States
and Canada, and holding that the State of California, not being a signatory to the treaty, is not bound
to the treaty language); Hart v. Wilson, No. C 96-0247 SI, 1996 WL 371430, * 2 (N.D. Cal. June 25,
1996) (analyzing the same Convention at issue in the case at bar, and finding that the State of
California is not a party to the Convention and that California prison officials are not bound to the
Convention's terms). Itis well established that international treaties, such as the Convention at issue
here, are agreements between sovereign nations.'? See e.g. Matta-Ballesteros v. Henman 896 F.2d
255, 259 (7th Cir. 1990).

Despite this, Rickard argues that IDOC's refusal to convert his sentence thwarts the
Convention and violates the Supremacy Clause. Rickard's authority for this proposition is a law
student's note in the Fordham law review. The student author points to no authority for his assertion
that a state's treaty enabling legislation and application thereof may violate the Supremacy Clause

if the legislation or its application thwarts the Convention’s goals. Contra Hogan, 920 F.2d at 8

‘The signatories to the Convention are Austria, Belgium, Cyprus, Denmark, France,
Germany, Greece, Iceland, Ireland, Turkey, the United Kingdom, Canada, and the United States.

20


is permissive rather than mandatory. Article 3 of the Convention sets for the conditions for transfer,
and states:

1. A sentenced person may be transferred under this Convention only on
the following conditions:

a, _ if that person is a national of the administering State!”;

b. if the judgment is final;

c. if, at the time of receipt of the request for transfer, the sentenced
person still has at least six months of the sentence to serve or if the sentence
is indeterminate;

d. ifthe transfer is consented to by the sentenced person or, where
in view of his age or his physical or mental condition one of the two States
considers it necessary, by the sentenced person's legal representative;

e. _ if the acts or omissions on account of which the sentence has
been imposed constitute a criminal offence according to the law of the
administering State or would constitute a criminal offence if committed on
its territory; and

f. if the sentencing and administering States agree to the transfer.

Convention, Art. 3, 35 U.S.T. 2867, 2872. The first line of Article 3 is permissive. The sentenced
person may be transferred if certain conditions are present. Id, Condition “f” allows transfer only
if both the sentencing state and the administering state agree to the transfer. Id. This condition has
not occurred because the United Kingdom has denied Rickard's request. Moreover, all the necessary
conditions outlined in Article 3 are permissive, and impose no duty on either the sentencing State
or the administering State to transfer a prisoner upon his or her request. See id. Accordingly, the
court finds that the Convention imparts no individual right upon prisoners to obtain a transfer.
Every court addressing this issue has come to the same conclusion: there is no individual

right to a transfer under the Convention. See Scalise, 861 F.2d at 649; see also Bishop, 210 F.3d at

Under the Convention, the sentencing State is the nation that has sentenced the prisoner,
and the administering State is the nation to which the prisoner may be transferred. In this case, the
United States is the sentencing State, and the United Kingdom is the administering State. See
Convention, Art. 1, 35 U.S.T. 2867, 2870.

22


in Trest v. Cain, sometimes the “longer . . . way ‘round is the shortest way home.” 522 U.S. 87, 92
(1997).
b. The Merits:

At last, the court turns to the merits of Rickard’s habeas claims. Section 2254 allows federal
courts to entertain a petition for writ of habeas corpus only when the petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Here,
Rickard claims two grounds for habeas relief: (1) Illinois deprived him of his Fourteenth
Amendment rights to due process and equal protection of the laws by refusing to convert his
sentence to facilitate his transfer; and (2) a federal right to be transferred pursuant to the Convention.
The court addresses each in turn.

i, Rickard Has Waived The Due Process and Equal Protection
Arguments:

Rickard loosely asserts that IDOC and the Illinois state courts have denied him his Fourteenth
Amendment rights to due process and equal protection of the laws by refusing to convert his
sentence. Rickard, however, fails to support either argument with pertinent authority or a cogent
argument. As to the “due process” claim, it is not at all clear whether he is asserting a denial of
substantive due process or procedural due process. See generally LC&S, Inc. v. Warren County
Area Plan Comm’n, 244 F.3d 601, 602-03 (7th Cir. 2001) (discussing procedural due process);

Coniston, 844 F.2d at 466-67 (discussing substantive due process). For example, Rickard asserts

that one of the proceedings in the Illinois courts was ex parte (see Am. Pet. Count I, | 46), which

potentially involves a procedural due process claim. See LC&S, Inc., 244 F.3d at 602-03. On the

other hand, Rickard also asserts that Illinois’ refusal to grant him access to the Convention involves

17


doctrine also bars federal courts from granting relief that would effectively void a state court

judgment. See Remer, 205 F.3d at 996; Landers Seed Co., Inc. v. Champaign Nat. Bank, 15 F.3d

729, 732 (7th Cir. 1994). Here, Rickard asks the court to grant a petition for mandamus that is
substantially identical to one the Illinois Supreme Court rejected in 1998. Ordering the mandamus
(which the court cannot do anyway) would effectively void the Illinois Supreme Court’s ruling.
Therefore, the claim is barred by the Rooker-Feldman doctrine.®

B. 28 U.S.C. § 2254 and 42 U.S.C. § 1983:

The court’s next task is to separate Rickard’s § 2254 claims from his § 1983 claims.
Numerous decisions from the Seventh Circuit address this issue. See e.g. Dewalt v. Carter, 224 F.3d
607, 613-18 (7th Cir. 2000); Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir. 2000); Pischke v.
Litscher, 178 F.3d 497, 499-500 (7th Cir. 1999); Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir.

1998); Clayton-El v. Fisher, 96 F.3d 236, 241-43 (7th Cir. 1996); Falcon v. United States Bureau

of Prisons, 52 F.3d 137, 138-39 (7th Cir. 1995); Graham v. Broglin, 922 F.2d 379, 380-82 (7th Cir.
1991); Viens v. Daniels, 871 F.2d 1328 (7th Cir. 1989). Usually, the line between § 2254 and §

1983 is easy to locate, but that is not always the case. Moran, 218 F.3d at 650-51; Graham, 922 F.2d

at 380-82; Clayton-El, 96 F.3d at 241-43. In Graham, the Seventh Circuit generalized that habeas
corpus is the appropriate remedy for a prisoner “seeking what can fairly be described as a quantum

change in the level of custody — whether outright freedom, or freedom subject to the limited

'The court notes that the Rooker-Feldman doctrine does not apply where there is specific
statutory authority to bring a federal collateral attack on a state court judgment, such as a habeas
corpus proceeding. See Levin, 74 F.3d at 766. The court’s discussion in this section is limited to
Rickard’s petition for writ of mandamus, which does not fall within the scope of § 2254(a). The
court analyzes Rickard’s § 2254 claims infra at pp 15-23.

9


Illinois’ participation in the Convention. As part of this petition, Rickard argued that his sentence
should be converted to a 40 year sentence. Rickard further argued that a 40 year sentence equates
to 20 years with credit for good time, which he had already served. (Am. Pet. Ex. 21, pp. 1, 6, 7.)
The Illinois Supreme Court denied the petition without opinion. (Am. Pet. Ex. 23.)

On October 28, 1998, Rickard filed a petition for relief from judgment in the Circuit Court
of Cook County, Criminal Division, asking that court to re-sentence him to a determinate sentence
under 730 ILCS 5/5-8-1. In a one page order, the court denied the petition as untimely, frivolous,
and without merit. (Am. Pet. Ex. 25.) Rickard sought leave to appeal the decision, which the Illinois
Appellate Court denied without prejudice due to an incomplete record. (Am. Pet. Ex. 27.) Rickard
then sought leave to appeal to the Illinois Supreme Court, and was denied.

In June 1999, Rickard brought the habeas petition that this court dismissed for lack of subject

matter jurisdiction. Rickard, 108 F. Supp. 2d at 1020-22. Upon the Seventh Circuit’s dismissal of

his motion for leave to file a second or successive petition for collateral review, Rickard brings this
amended petition. Rickard alleges a mixed bag of violations of federal and state law by IDOC for
its handling of his transfer application and refusal to convert his sentence without a court order. He
claims that the Convention gives him a federal right to be transferred to the United Kingdom, and
that Illinois’ refusal to convert his sentence to one that is acceptable to the United Kingdom violates
the Illinois treaty enabling statute (730 ILCS § 5/3-2-3.1), and violates his federal Constitutional
tights to due process and equal protection of the laws. Rickard seeks the following relief: (1) a writ
of mandamus to IDOC ordering it to convert his sentence to a determinate one, and ensuring that he
is transferred to the United Kingdom; (2) an order to the Illinois state court to re-sentence him to a
determinate term, while taking into account all mitigating factors, such as age, time served, model

6


United States Department of Justice gave its preliminary approval for Rickard’s transfer, and
forwarded Rickard’s materials to HM Prison Service in the United Kingdom for its consideration.

Rickard’s transfer application hit a snag on September 30, 1997, when HM Prison Service
indicated it would not accept Rickard’s indeterminate sentence of 40-80 years because such a
sentence is inconsistent with English law. HM Prison Service wrote that the only indeterminate
sentence England recognizes is a life sentence, which would be an aggravation of Rickard’s 40-80
year term, and the Convention expressly forbids transfers that aggravate sentences. See e.g.
Convention, Art. 10(2), 35 U.S.T. 2867, 2876. HM Prison Service suggested to both the United
States Department of Justice and Rickard that his indeterminate sentence be converted to a
determinate sentence. If that were to occur, the United Kingdom indicated it would reconsider
Rickard’s transfer.

In November 1997, Rickard began his attempts to “convert’’ his sentence from an
indeterminate one to a determinate one by filing a grievance with IDOC and sending a letter to then
Governor Edgar, asking that his sentence be converted to a 40 year determinate sentence, (See Am.
Pet. Ex. 11, pg. 2.) Governor Edgar did not respond to Rickard’s request, but IDOC informed
Rickard that it did not have the authority to change his sentence without a court order. Thus,
Rickard’s transfer application reached an impasse. The United Kingdom would not accept his
indeterminate sentence, and IDOC could not change his sentence without a court order.

In January 1998, Rickard filed a petition for writ of mandamus in the Illinois Supreme Court.

The petition asked the Illinois Supreme Court to order IDOC to take steps necessary to ensure

SRickard uses the term “convert” to describe changing his indeterminate sentence to a
determinate sentence.


his Fourteenth Amendment due process rights (see e.g. Am Pet. Count I, 151), and that one of his
state court actions was dismissed for want of prosecution without appointment of counsel to
represent him (see id. at Count III, 61). These claims potentially involve substantive due process
rights, which involve a host of thorny issues and require painstaking development. See e.g. County
of Sacramento v. Lewis, 118 S. Ct. 1708 (1998); Armstrong v. Squadrito, 152 F.3d 564, 570 (7th
Cir. 1998) (citing cases). It is Rickard’s burden to present these issues clearly and to support them
with appropriate authority. Doherty v. City of Chicago, 75 F.3d 318, 324 (7th Cir. 1996) (noting
that it is up to the parties, not the court, to construct the arguments); see also United States v. Jones,
224 F.3d 621, 626 (7th Cir. 2000) (noting that an undeveloped argument speaks to its paucity, and
refusing to consider the argument). Rickard fails to do so, and the court will not address these
undeveloped arguments.

Turning to the equal protection argument, Rickard fails to identify a protected class to which
he belongs. For example, he seems to assert that prisoners incarcerated in other states (Connecticut,
New York, Ohio, and Washington) have a greater chance at transfer under the Convention because
those states have more effective treaty enabling legislation than Illinois. (Am. Pet. 438.) On this
basis, Rickard asserts that Illinois deprives him of equal protection of the Convention. (See id, at
4/39.) Rickard also alleges that he may be a member of protected class because of his age and/or
alienage. (Reply at pg 7, emphasis added.) The age and alienage allegations are made without

factual support or citation to supporting relevant authority.'* Compare Wong v. Warden, 999 F.

“For example, Rickard cites Schlesinger v. Ballard, 419 U.S. 498, 500 n. 3 (1978) for the
proposition that the Fifth Amendment's due process clause prohibits the Federal Government “from
engaging in discrimination that is so unjustifiable as to be violative of due process.” While this is
an accurate statement of the law, it is inapposite to this case, which involves a state government’s

18


IDOC to comply with the Illinois enabling statute.’ A federal court does not have jurisdiction to
issue a mandamus to state officials for violating duties imposed by state law. Coniston Corp. v.
Village of Hoffman Estates, 844 F.2d 461, 469 (7th Cir. 1988); see also Shegog v. Board of Educ.,
194 F.3d 836, 837-38 (7th Cir. 1999) (discussing federalism issues and stating ““[I]t is difficult to
think of a greater intrusion on state sovereignty than when a federal court instructs state officials on

how to conform their conduct to state law.’”) (quoting Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, 106 (1984)); Jones v. Burris, 825 F. Supp. 860, 861 (N.D. Ill. 1993)
(dismissing a state prisoner’s petition for mandamus). IDOC’s alleged non-compliance with the
Illinois treaty enabling statute is an issue of state law that is not within the court’s jurisdiction.
Coniston Corp., 844 F.2d at 469.

Moreover, the Illinois Supreme Court has already denied Rickard’s earlier petition seeking
mandamus on the same issues. (See Am. Pet. Ex.’s 21 & 23.) The Rooker-Feldman doctrine

instructs that federal district courts do not have subject matter jurisdiction to review decisions of

state courts. See Levin v. Attorney Registration and Disciplinary Commission, 74 F.3d 763, 766
(7th Cir. 1996) (federal district courts “‘do not have jurisdiction . . . over challenges to state-court
decisions in particular cases arising out of judicial proceedings even if those challenges allege that
the state court’s action was unconstitutional.’”) (quoting District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 486 (1983)); see also Remer v. Burlington Area Sch. Dist., 205 F.3d 990,

996 (7th Cir. 2000) (discussing the Rooker-Feldman doctrine). Although the pivotal inquiry is

whether the party seeks to set aside a state court judgment or brings an independent claim, the

"The court addresses Rickard’s claim that IDOC’s refusal to convert his sentence violated
his federal constitutional rights to due process and equal protection infra at pp. 17-19.

8


Minto O16 Form (06/99)

45 United States District Court, Northern District of Ilinois
ome Charles R. Norgle | itn ade ner
CASE NUMBER 00 C 609 2069 DATE 6/8/2001
CASE UNITED STATES OF AMERICA ex rel. Rickard vs. JERRY STERNES, WARDEN
TITLE
Un the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented,] i
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due.
(3) a Answer brief to motion due. , Reply to answer brief due___.
(4) ia] Ruling/Hearing on __set fora
(5) o Status hearing[held/continued to] [set for/re-set for]on__—ssetfor___—aat.
(6) o Pretrial conference[held/continued to} [set for/re-set for]on__setfor__—sat_—
(7) i) Trial[set for/re-set for}on___—__at
(8) oO [Bench/Jury trial] [Hearing] held/continued toa
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) OO FRCP41(a)(2).

(0) «xf [Other docket entry] Petitioner’s Amended Petition for Habeas Corpus, Section 1983 Civil Rights
deprivation and for Writ of Mandamus is denied.

(11) of [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

notices required
No reat number of notices

Notices mailed by judge’s staff. JUN 1 2 20

Notified counsel by telephone.

o_| Docketing to mail mgyes.
¥ | Mail AO 450 form, E0-7

date d

docketing HepfigMnitiats

Copy to judge/magistrate fe jacked) F i “OR BOCKE

GL UN TT aH

EF deputy’s
initials

date maited notice

Date/time received in
central Clerk’s Office ‘mailing dopuly initiats



Likewise, Rickard’s ultimate demand to be transferred to the United Kingdom is a civil rights
claim. It is well settled that a state prisoner’s claim to be placed in a particular institution is one that
exists, if at all, under civil rights laws. Moran, 218 F.3d at 650-651; Graham, 922 F.2d at 381. And
it makes no difference that Rickard is seeking an international transfer pursuant to the Convention
instead of the more usual suit to demand or contest an intrastate transfer to a different institution.
See Scalise v. Thornburgh, 891 F.2d 640, 649 n. 10 (7th Cir. 1989) (noting that the same analysis
applies to prisoners seeking an international prison transfer and those seeking an intrastate transfer).
Rickard also alleges deprivations of his rights to equal protection and due process. To the extent he
is seeking monetary relief rather than speedier release from custody for these alleged deprivations,

he must proceed under § 1983. Preiser, 411 U.S. at 484-90 & 500.

Rickard’s claim that he is entitled to have his indeterminate sentence converted to a
determinate sentence is not as clear cut.? Rickard asks the court to order the Illinois state court to
convert his sentence, and to take into account all mitigating factors, such as age, time served, good
behavior, and educational efforts. At the same time, Rickard wants this court’s order to prohibit the
Illinois court from imposing any punitive measures during re-sentencing, such as ignoring the
possibility of imminent parole.'? Rickard’s ultimate goal may be a transfer to the United Kingdom,

but he cannot obtain that without changing his sentence, and the converted sentence he seeks is

°The parties did not cite, and the court’s research did not find, a Seventh Circuit case deciding
the issue of whether converting an indeterminate sentence to a determinate one is a habeas claim or
a civil rights claim. At least one decision from the Tenth Circuit treats the issue as a habeas claim,
but does not analyze the issue. See Murray v. Cowley, 913 F.2d 832 (10th Cir. 1990).

Rickard’s request in this petition is consistent with the position that he took in November
1997 and January 1998, when he asked then Governor Edgar and the Illinois Supreme Court to
convert his sentence to a 40 year determinate sentence.

11


reporting and financial constraints of bond or parole or probation, or the run of the prison in contrast
to the approximation to solitary confinement that is disciplinary segregation. ...” 922 F.2d at 381.
“But if [the prisoner] is seeking a different program or location or environment, then he is
challenging the conditions rather than the fact of his confinement, and his remedy is under civil
rights law, even if. . . the program or location or environment that he is challenging is more
restrictive than the alternative that he seeks.” Id.; compare Clayton-El, 96 F.3d at 242 (stating that
the distinction between habeas corpus and civil rights focuses on the injury claimed rather than the

relief sought) (citing Heck v. Humphrey, 114 S. Ct. 2364, 2369-70 (1994)). Moran firmed up the

line between § 2254 and § 1983 by holding that “[s]tate prisoners who want to challenge their
convictions, their sentences, or administrative orders revoking good-time credits or equivalent
sentence-shortening devices, must seek habeas corpus, because they contest the fact or duration of
custody.” 218 F.3d at 650-51 (citing Preiser v. Rodriguez, 411 U.S. 475 (1973) and Edwards v.

Balisok, 520 U.S. 641 (1997)). “State prisoners who want to raise a constitutional challenge to any

other decision, such as transfer to a new prison, administrative segregation, exclusion from prison
programs, or suspension of privileges, must instead employ § 1983 or another statute authorizing

damages or injunctions... ..” Moran, 218 F.3d at 650-51 (also acknowledging that there may be rare

cases at the edges of this dichotomy).
Guided by these principles, it is simple to separate many of Rickard’s claims. The claims
for his alleged loss of consortium and forced dismissal of two other lawsuits implicate civil rights

rather than habeas corpus. There is nothing about these claims that goes to the fact or duration of

his custody. See id.; Graham, 922 F.2d at 381. Thus, they must be brought under § 1983 rather than

§ 2254.

10


behavior and educational efforts, and while forbidding any penalties against him, such as ignoring
the possibility of imminent release based on parole board standards; (3) monetary damages for loss
of consortium for not being able to see his step-mother before she died; and (4) concerning the two
lawsuits he voluntarily dismissed to expedite his transfer request, an award of the damages he sought
in the two suits, or alternatively, an order reinstating the suits.®
Il. DISCUSSION
The court will first address Rickard’s request for a writ of mandamus. The court will then
separate Rickard’s § 2254 claims from his § 1983 claims and analyze the claims under the
substantive and procedural requirements of those statutes.
A. Writ of Mandamus:
Illinois has enacted enabling legislation to help effectuate federal prisoner transfer treaties.

The statute states:

Ifa treaty in effect between the United States and a foreign country provides

for the transfer or exchange of convicted offenders to the country of which

they are citizens or nationals, the Governor may, on behalf of the State and

subject to the terms of the treaty, authorize the Director of Corrections to

consent to the transfer or exchange of offenders and take any other action

necessary to initiate the participation of this State in the treaty.
730 ILCS 5/3-2-3.1. Rickard argues strenuously that this statute imposes a duty on IDOC to convert
his sentence and ensure his transfer. He complains that IDOC’s refusal to act without a court order

violates this duty, and seeks a mandamus from this court ordering IDOC to comply with the statute.

The court does not have jurisdiction to rule on a petition for writ of mandamus ordering

SRickard states in his reply brief that the suit concerning the loss of his radio is now moot.
(Reply at pg. 14.)


(holding that California is not bound by an international prisoner transfer treaty); Hart, 1996 WL
371430 at * 2 (same). Rickard’s authority is not persuasive.'* But, even if it were, Rickard’s
argument still fails because the Convention does not give Rickard a right to a transfer.

The Convention imparts no individual right for a foreign national prisoner to be transferred
to his home country. The general rule is that treaties are agreements between governments, and
individuals do not have standing to assert a private right in the absence of a protest by one of the
treaty's signatories. See United States v. Chaparro-Alcantara, 226 F.3d 616, 620-21 (7th Cir. 2000)
(citing Matta-Ballesteros, 896 F.3d at 259); ef. United States v. Carrillo, 70 F. Supp. 2d 854, 857-59
(N.D. IIL. 1999) (chambers opinion analyzing whether Article 36 of the Vienna Convention provides
a private right of action). In this case, neither the United States nor the United Kingdom have
protested the impasse over Rickard’s transfer. Thus, under the general rule, Rickard does not have
standing to assert an individual right to be transferred. See Matta-Ballesteros, 896 F.3d at 259-60
(finding no violation of international law in the absence of an official protest). Nevertheless, the
court will examine the Convention to ensure that it imparts no individual right to Rickard.

Treaty analysis begins with the treaty language. See Marquez-Ramos v. Reno, 69 F.3d 477,
480 (10th Cir. 1995) (citing Eastern Airlines, Inc. v. Floyd 499 U.S. 530, 534 (1991) (in turn quoting
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988)). If the language is clear
and unambiguous, the court does not look beyond the written words. Marquez — Ramos, 69 F.3d

at 480 (citing cases). In this case, the plain language of the Convention demonstrates that transfer

‘The court recognizes that state laws that are inconsistent with United States foreign policy

may be invalid under the Supremacy Clause. See e.g. Crosby v. Nation Foreign Trade Council, 530
U.S. 363 (2000). The Illinois treaty enabling statute is not such a law.

21


1295, 1298-1304 (11th Cir. 2000) (discussing the Convention). Rickard is a British citizen,
currently incarcerated in Illinois, seeking to serve the remainder of his sentence in the United
Kingdom.

Rickard was convicted in Illinois state court for the 1978 murder of a co-worker.? His
original sentence was 100-300 years, but he successfully challenged that sentence on direct appeal.
On remand, the trial court imposed a sentence of 40-120 years, which Rickard also appealed. (See
Resp. Ex. B.) On November 15, 1983, the Illinois Appellate Court granted relief, and set his
sentence at 40-80 years incarceration. (Id, at 5.)

The Convention became effective in the United States on July 1, 1985. See 35 U.S.T. 2867,
2868-89. Consistent with the terms of the Convention, on July 9, 1985, the United States
Department of Justice notified Rickard that he was a potential candidate for transfer to the United
Kingdom. (See Am. Pet. Ex. 2.) The notice gave Rickard the option to indicate whether he had an
interest in obtaining a transfer. (See id.) The record is not clear as to whether Rickard requested a
transfer at that time. The copy of the notice Rickard attaches to this petition does not reflect
Rickard’s interest or non-interest in transfer. (See id.) But ina pleading Rickard later submitted to
the Circuit Court of Cook County, he wrote that in July 1985 he checked the appropriate box on the

notice to indicate his interest in being transferred, and that neither the United States Department of

*For a detailed description of Rickard’s crime and some of the procedural history of this case,
see United States ex. rel. Christopher Rickard v. Haws, No. 87 C 2238, 1988 WL 33835 at *3 (N.D.
Ill. April 7, 1988) (denying habeas claims on their merits).

3


Sylvester, 140 F.3d at 714. The differences include, but are not limited to, the amount of the
required filing fees, the “three strikes” rule of the PLRA, the strict exhaustion requirements of the
AEDPA, and different procedural rules, i.e. the Rules Governing Habeas Corpus. See Walker v.

O’Brien, 216 F.3d 626, 631-32 (7th Cir. 2000); Moran, 218 F.3d at 651; Pischke, 178 F.3d at 500;

Sylvester, 140 F.3d at 714. Because of these differences, the court should dismiss without prejudice

a § 1983 claim that has been improperly filed under § 2254. See Moran, 218 F.3d at 651; Pischke,

178 F.3d at 500. In this case, Rickard styled his amended petition as including claims under both
§ 1983 and § 2254, and argues in his briefs that his claims are cognizable under both statutes. But
Rickard docketed the suit as a § 2254 habeas petition and paid the accompanying $5.00 fee for a §
2254 case rather than the $150.00 fee required for a § 1983 case. The court is also unaware of
Rickard’s status under the PLRA’s three strikes rule. See 28 U.S.C. § 1915(g). Moreover, the
procedural status of this case makes it difficult for the court to address the § 1983 claims. The court
may resolve a § 2254 claim on the petition and answer, see Rule 8 of the Rules Governing Habeas
Corpus, but § 1983 claims must proceed according the Federal Rules of Civil Procedure. The
disposition both parties seek on the § 1983 claims would most likely be summary judgment under
Federal Rule of Civil Procedure 56, and the pleadings are not in a state that Rule 56 would apply.
For all of these reasons, the court dismisses without prejudice all of Rickard’s claims that are
cognizable under § 1983. Those are: (1) the claim for loss of consortium; (2) the request to be
transferred to the United Kingdom; (3) the request for the damages Rickard was seeking in his two
lawsuits, and the alternative request to reinstate those suits; (4) Rickard’s request, if he has even

made it, to have his indeterminate 40-80 year sentence converted to a determinate 80 year sentence;

14


petitioner is also procedurally barred from raising claims in a federal habeas court that he did not
fairly present to the state court. See O'Sullivan, 526 U.S. at 848; cf. Rodriguez v. Scillia, 193 F.3d
913, 916 (7th Cir.1999) (discussing exhaustion of claims). Despite these rules, the court has the
authority to deny a habeas petition on its merits notwithstanding failure to exhaust state court
remedies. 28 U.S.C. § 2254(b)(2).

Also, federal habeas courts cannot review claims that the state court has disposed of on state
law grounds. Lambrix v. Singletary, 520 U.S. 518, 523-24 (1997); see also Coleman v. Thompson,
501 U.S. 722, 729 (1991) (noting that federal habeas relief is not available if the state court decision
rests on state law that “is independent of the federal question and adequate to support the
judgment.”). When a state court has reviewed federal claims on their merits, federal habeas review
is governed by the deferential standards of § 2254(d). See Williams v. Taylor, 120 S. Ct. 1495,
1516-23 (2000) (opinion of O’Connor, J., analyzing and interpreting § 2254(d)).

Rickard faces these procedural hurdles. Part of Rickard’s argument is that he has been denied
due process and equal protection of the law. Respondent argues that these Constitutional issues are
procedurally barred because Rickard did not present them to the Illinois courts. Respondent also
asserts that the Circuit Court of Cook County’s order dismissing his October 1998 petition for relief
from judgment as untimely represents an independent and adequate state law ground that is not
subject to review by this court. While not minimizing the importance of Respondent’s arguments,
the court declines to decide the case on these grounds. The Seventh Circuit’s order directs the court
to address the merits of Rickard’s habeas claims. (Am. Pet. Appx. A.) Moreover, the sparseness
of the state court’s orders makes it difficult to determine whether their decisions actually rest on
independent and adequate state grounds such as timeliness or waiver. As the Supreme Court noted

16


Rickard did not appeal the court’s dismissal, but presented a motion to the court of appeals
seeking authorization for the district court to entertain a second or successive petition for collateral
review. See 28 U.S.C. § 2244(b). A one judge panel of the Seventh Circuit considered Rickard’s
motion, determined that his petition was not second or successive, and dismissed the motion.' (See
Seventh Circuit’s order in appellate docket number 00-3240, attached to Rickard’s Am. Pet. as
Appx. A.) Rickard then re-filed his habeas petition as a new suit, which received a new district court
case number, 00 C 7069. Rickard docketed 00 C 7069 as a habeas petition under § 2254 and paid
the $5.00 filing fee for habeas petitions. After Rickard’s filing of an amended petition and briefing,
the case is set for ruling.

B. Factual Background:

This case involves the application of The Convention on the Transfer of Sentenced Persons

(“Convention”), 35 U.S.T. 2867. In certain circumstances, the Convention allows persons convicted

in foreign nations to serve their sentences in their home country. See e.g. Bishop v. Reno, 210 F.3d

'While being respectful of the court of appeals, it is necessary to touch upon that court’s
dismissal of Rickard’s motion. 28 U.S.C. § 2244(b)(3)(B) requires a three judge panel of the court
of appeals to determine a motion for authorization to file a second or successive application for writ
of habeas corpus. However, Rickard’s motion was decided by only one judge. And the court of
appeals’ order dismissed Rickard’s motion, but did not give clear instructions to the parties or the
district court. The order states: “[I]t is best to leave to the district court on remand any other
questions concerning the Convention claim, including the question whether Rickard’s claim on the
merits satisfies the substantive requirements of § 2254 or any other source of federal relief.”
Compare Jacobs v McCaughtry, — F.3d —, No. 01-1847, 2001 WL 487363 at *2 (7th Cir. May 9,
2001) (dismissing as unnecessary a motion for authorization to file a second or successive habeas
petition, and instructing the district court to accept the filing of the petition); Walker v. Roth, 133
F.3d 455, 455 (7th Cir. 1997) (same, and remanding the case). The court presumes that the Seventh
Circuit’s order is valid, and that it orders this court to review Rickard’s § 2254 claims on their
merits, The court does not presume that the Seventh Circuit’s order requires the court to address the
merits of Rickard’s § 1983 and mandamus claims, which are not properly before the court. See infra
pp. 7-9 & 13-15.


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

EASTERN DIVISION
UNITED STATES of AMERICA, ex rel.)
CHRISTOPHER RICKARD, )
) No. 00 C 7069
Petitioner, )
) HONORABLE CHARLES R. NORGLE
vs. )
)
JERRY STERNES, Warden; and )
DONALD SNYDER, Director of the )
Illinois Department of Corrections, ) .
my. -
Respondents. ) ~ 2 pacers .
OPINION AND ORDER

CHARLES R. NORGLE, Sr., District Judge:

Before the court is Christopher Rickard’s pleading styled “Petitioner’s Amended Petition for
Habeas Corpus, Section 1983 Civil Rights Deprivation and for Writ of Mandamus.” For the
following reasons, Rickard’s claims for habeas relief are denied on their merits, the 42 U.S.C § 1983
claims are dismissed, and the petition for writ of mandamus is denied.

I. BACKGROUND
A. Procedural Posture:

This marks the second time this case is before the court. In 1999, Rickard brought a petition
seeking relief under 28 U.S.C. § 2254. (See district court case number 99 C 4457.) The court
determined that Rickard’s 1999 habeas petition was second or successive to his 1987 habeas petition,
and needed approval from the court of appeals prior to its filing in the district court. United States
ex rel Rickard v. Roth, 108 F. Supp. 2d 1017, 1020-22 (N.D. Ill. 2000). Consequently, the court

dismissed the petition for lack of subject matter jurisdiction. Id.


shorter than the one imposed by the Illinois state courts. As Graham and the other authorities

discussed above make clear, such a request involves a quantum change in the level of custody, and

must be brought as a habeas petition. Graham, 922 F.2d at 381; see also Preiser, 411 U.S. at 499-
500 (holding that habeas is the proper remedy if granting the relief sought will result in a speedier

release from custody); Moran, 218 F.3d at 650-51 (holding that any challenge to the duration of

custody is a habeas claim); Heidelberg v. Illinois Prisoner Review Board, 163 F.3d 1025, 1026-27
(7th Cir. 1998) (noting the well established law that prisoners do not have the right “‘to be
conditionally released before the expiration of a valid sentence”) (quoting Greenholtz v. Inmates
of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979)). It was on this
understanding, that Rickard is seeking a change in the duration of his custody, that the court

determined that Rickard’s 1999 petition was second or successive to his 1987 petition. See Rickard,

108 F. Supp. 2d at 1020-21.

The Seventh Circuit, however, saw Rickard’s request to change his sentence somewhat
differently. The Court’s order noted that, logically, Rickard’s efforts to convert his sentence for the
purpose of a transfer was not an attack on the sentence itself. (See Am. Pet. App. A.) The Court
went on to say: “Although Rickard would like the Ilinois courts to convert it to a 40-year
determinate sentence, there is nothing logically that would prevent them from converting it to an 80-
year determinate sentence (or anything else within the earlier range) if they have the power to take
this step at all.” (Id.) The Seventh Circuit left it to this court to determine whether Rickard’s claim
on its merits “satisfies the substantive requirements of § 2254 or any other source of federal relief.”

(Id.) This order suggests that Rickard’s request to have his sentence converted is cognizable under

12


and (5) any monetary relief he may seek for the alleged violations of his equal protection and due
process rights.
With this ruling, Rickard may re-file these claims as a § 1983 suit so long as he complies

with all applicable requirements. Pischke, 178 F.3d at 499-500. This is not to give Rickard false

hope on the merits of these claims. It is well settled that there is no Constitutional right to a transfer
between prisons, whether international, interstate, or intrastate. See Moran, 218 F.3d at 650-51;

Scalise, 891 F.2d at 649 n. 10; see also Pischke, 178 F.3d at 499-500 (affirming the dismissal of

habeas suits filed to contest transfers to private prisons, and cautioning that refiling the cases under
§ 1983 would be futile). And, as discussed below, Rickard’s reliance on federal Constitutional law
and the Convention to convert his sentence is without merit, whether construed as a civil rights claim
or a habeas claim.

2. The § 2254 Claims Are Without Merit:

It is not easy to obtain relief under § 2254. The statute has many procedural requirements,
including exhaustion of state court remedies and procedural default, and affords relief only on
narrow substantive grounds. The court briefly addresses the procedural issues, and then delves into
the merits of Rickard’s claims.

a. Exhaustion and Procedural Default:
Section 2254 requires a habeas petitioner to exhaust the remedies available in state court

prior to pursuing federal habeas relief. See 28 U.S.C. § 2254(b)(1)(A); O’ Sullivan v. Boerckel, 526

USS. 838, 842-43 (1999); Spreitzer v. Schomig, 219 F. 3d 639, 644-45 (7th Cir. 2000). A habeas

The parties do not raise, and the court does not address, the timeliness of Rickard’s petition.
See 28 U.S.C. § 2244(d).

15