# Vanskike v. Sullivan

> District Court, S.D. Illinois · November 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10151248

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** November 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANIEL L. VANSKIKE, # C-68736, )
)
Petitioner, )
)
vs. ) CaseNo. 18-cv-2138-NJR
)
DANIEL Q. SULLIVAN, )
)
Respondent. )
MEMORANDUM AND ORDER
ROSENSTENGEL,Chief Judge:
This matter is before the Court on Respondent’s Motion to Dismiss Habeas Corpus Petition
as Unexhausted. (Doc. 12). On December 3, 2018, Petitioner Daniel L. VanSkike, a state prisoner
currently incarcerated at Big Muddy River Correctional Center, filed his Petition for Writ of
Habeas Corpus under28 U.S.C. § 2254. (Doc. 1). He claims that by operation of Illinois state law,
he has served the required period of incarceration and is now being imprisoned unlawfully.
(Doc.1, pp. 1-2). According to VanSkike, the Illinois Department of Corrections(“IDOC”)failed
to award him sentence credits to which he was entitled, improperly aggregated his two sentences
into one, and deliberately miscalculated his term of imprisonment. (Doc. 1, pp. 5, 7-10). He asserts
that he is entitled to immediate release from incarceration.
The Motion to Dismiss argues that VanSkike failed to exhaust his claims through the
Illinois state courts before bringing this federal habeas action. (Doc. 12, pp. 2-4). VanSkike
opposes the motion. (Doc. 15).
RELEVANT FACTS
VanSkike was convicted in 1976 of multiple counts including aggravated kidnapping and
rape, arising from two separate attacks. Heis serving two consecutive indeterminate sentences, for
30-60 years and 50-75 years, imposed in Macon County Circuit Court Cases 76-CF-236 and 76-
CF-237.(Doc. 1, p. 4).1
In his response to the Motion to Dismiss, VanSkike asserts that he filed a mandamus action
in Will County in approximately 1990; it was denied. (Doc. 15, p. 7). He does not remember

whether he appealed the denial, and he does not describe the issue(s) he raised in the mandamus
petition. He attempted to file an action in Randolph County after his 1992 transfer to Menard, and
he believes the circuit court’s denial was affirmed by the Illinois Appellate Court as res judicata
to the Will County action. Id.
In March 2016, the Illinois Prisoner Review Board considered VanSkike for discretionary
parole and denied release. (Doc. 1, pp. 52-60). In May 2018, VanSkike filed a state petition for
writ of habeas corpus directly with the Illinois Supreme Court. (Doc. 1, pp. 2-3, 6-7). That court
construed VanSkike’s filing as a motion for leave to file a habeas corpus petition and denied it on
September 25, 2018. (Doc. 1, pp. 3, 82-83). This action followed.

VanSkike argues that he finished serving his maximum sentence on April 28, 2017.
(Doc.1, p. 30). According to the IDOC’s online records,2 his projected release date is
September 14, 2034.3 Because VanSkike’s sentence is indeterminate, however, the Illinois
Prisoner Review Board has discretion to grant him parole at an earlier date.

1 In 1978, VanSkike was sentenced to another consecutive 20-year term for armed violence in Randolph
County Circuit Court No. 78-CF-31. (Doc. 1, pp. 8-9). This sentence was ultimately vacated. (Doc. 1, pp.
9-10). See U.S. ex rel. VanSkike v. O’Leary, No. 88-C-9682, 1996 WL 495572, at *1-2 (N.D. Ill. Aug. 8,
1996) (finding that VanSkike had served his minimum term of incarceration and was eligible for
discretionary parole, which was denied in 1990 and 1996,and notingthat according to IDOC calculations,
he would not complete his maximum sentence until June 2040).
2 Offender Search page, https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last visited Nov. 26,
2019).
3See Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice
public records available on government websites) (collecting cases).
APPLICABLE LEGAL STANDARDS
A state prisoner may challenge the constitutionality of his confinementin a habeas petition
under §2254, but only after having exhausted both administrative remedies and state judicial
remedies. See, e.g., McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001) (challenge to loss of
sentence credits); U.S. ex rel. Johnson v. McGinnis, 734 F.2d 1193, 1196 (7th Cir. 1984).

28 U.S.C.A. § 2254(b)(1) requires that state judicial remedies be exhausted before a federal
court can grant habeas relief:
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 unless it appears that--
(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.
The exhaustion requirement means that, before seeking habeas relief, a petitioner is
required to bring his claim(s) through “one complete round of the State’s established appellate
review process” because “the exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are presented to the federal
courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also 28 U.S.C. §2254(c) (habeas
petitioner has not exhausted state court remedies if he still has the right under state law “to raise,
by any available procedure, the question presented.”). Under the Illinois two-tiered appeals
process, petitioners such as VanSkike must fully present their claims to the state circuit court, the
intermediate appellate court, andto the Illinois Supreme Court, which offers discretionary review.
Id.
DISCUSSION
VanSkike asserts that he exhausted his state court remedies by filing his petition for state
habeas corpus relief directly to the Illinois Supreme Court. He cites 735 ILCS 5/10/102,4 arguing
that he had the choice to file either in the Illinois Supreme Court or in the circuit court, and chose
the former because it offered a quicker resolution of his habeas claim. (Doc. 15, pp. 2-3).
Respondent contends that the Illinois Supreme Court’s summary dismissal of what it
characterized as a motion for leave to file a habeas petition did not amount to a decision on the

merits of VanSkike’s claim and did not satisfy the exhaustion requirement. (Doc. 12, p. 3).
VanSkike never filed a state habeas petition in Illinois circuit court after the Illinois Supreme
Court’s dismissal, nor did he raise his claims in previous state court actions. Respondent asserts
VanSkike has not exhausted his claims, and his Petition for federal habeas relief is premature.
(Doc. 12, pp. 3-4).
The exhaustion requirement is not a meaningless formality. Rather, it is “grounded in
principles of comity; in a federal system, the States should have the first opportunity to address
and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S.
722, 731 (1991). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

federal habeas court is bound to review the state court’s decision on a state prisoner’s claim with
a high degree of deference. 28 U.S.C. §2254(d); see also Harrington v. Richter, 562 U.S. 86, 102-
03 (2011); Bell v. Cone, 535 U.S. 685, 693 (2002). But if a state court never ruled on the prisoner’s
claim in the first place, the federal court has no state decision to review, and its consideration must
necessarily be de novo–which is inconsistent with the AEDPA. See Perruquet v. Briley, 390 F.3d
505, 518 (7th Cir. 2004); Groel v. Simmons, No. 13-cv-1008, 2017 WL 1076891, at *5-6 (S.D. Ill.
March 22, 2017).

4This statute provides that an application for relief “shall be made to the Supreme Court or to the circuit
court of the county in which the person . . . is imprisoned . . . or to the circuit court of the county from which
such person was sentenced or committed.”735 ILCS 5/10-103 (1997).
In this case, the Illinois Supreme Court noted when docketing VanSkike’s filing as a
motion “for leave to file a petition for writ of habeas corpus” that it “is principally a reviewing
court[.]” (Doc. 1, p. 82). Its one-sentence dismissal stated, “The motion by petitioner for leave to
file a petition for writ of habeas corpus is denied.” (Doc. 1, p. 83). This ruling did not engage with
the merits of VanSkike’s claims and does not provide any legal reasoning for this Court to consider

on habeas review. The summary dismissal did not satisfy the exhaustion requirement. See Crump
v. Lane, 807 F.2d 1394, 1395-96 (7th Cir. 1986) (Illinois Supreme Court’s summary denial of a
motion for leave to file an original action did not exhaust state court remedies because claim could
still be filed in circuit court).
VanSkike argues that the IDOC has improperly calculated his sentence by denying good
conduct credit, and further asserts that he has served his maximum sentence and is entitled to
immediate release. The claim for release can only succeed, however, if VanSkike prevails on his
sentence calculation arguments.
A complaint for mandamus pursuant to 735 ILCS 5/14-101, et seq., is the appropriate

vehicle to compel a state agency to comply with state statutes or administrative rules, such as those
governing the calculation of a state prisoner’s sentence.SeeU.S. ex rel. Johnson v. McGinnis, 734
F.2d 1193, 1199-1200 (7th Cir. 1984) (collecting cases); Toney v. Franzen, 687 F.2d 1016, 1021
(7th Cir. 1982) (“Under Illinois law, mandamus is clearly the appropriate procedure to compel the
Department of Corrections to set petitioner’s mandatory release date in accordance with law.”);
Edwards v. Snyder, No. 02-C-7632, 2003 WL 21418233(N.D. Ill. June 18, 2003) (prisoner failed
to exhaust dispute over IDOC calculation of release date by seeking mandamus relief in state
court); Overend v. Guard, 424 N.E.2d 731 (Ill. App. 1982) (“Mandamus is the appropriate means
to compel public officialsto comply with statutory or constitutional duties.”).These cases point to
a state mandamus action, commenced in state circuit court, as the proper avenue for VanSkike to
bring his sentence calculation claim.
Respondent acknowledges that VanSkike’s claim for immediate release is arguably
cognizable in a state habeas corpus action. (Doc. 12, p. 3, n.1). But VanSkike has not sought either
mandamus relief orhabeas relief in an Illinois circuit court, where prison officials could be ordered

to respond to his claims and where a full and reasoned decision could be madein consideration of
the relevant facts and law.
Respondent searched the court records of several circuit courts (Macon, Jefferson, and
Lawrence Counties) and was unable to find a case filed by VanSkike where he might have raised
his release-date claim. (Doc. 12, pp. 3-4, n.2). VanSkike’s 2002 Macon County habeas corpus case
(No. 2002-MR-115) was dismissed on April 11, 2002, with the docket notation, “Finding that
Habeas Corpus is only available if the original judgment is void . . . sentencing scheme and
sentences of the defendant are not unconstitutional and not void. The pleadings do not allege an
occurrence since the judgment that would entitle petitioner to release.” Website of Macon County

Circuit Clerk, “Search Cases,” http://search.co.macon.il.us/templates/searchcase info.htm (last
visited Nov. 25, 2019).5 Because VanSkike asserts that he completed serving his maximum
sentence on April 28, 2017, Respondent notes that he could not have raised his current claim for
immediate release in that action. (Doc. 12, pp. 3-4, n.2).
VanSkike reports having sought mandamus relief in 1990 in Will County and 1992 in
Randolph County, but does not explain what claims he raised in those actions. (Doc. 15, p. 7). The
online records of the Will County Circuit Court disclose that VanSkike filed a mandamus action,
Case No. 1990-MR-17453, in December 1990, which was dismissed on April 25, 1991 with the

5Court documents, including electronic docket information, are public records of which the Court can take
judicial notice.See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
notation, “Court finds that plaintiff has had parole hearing on May 9, 1990.” Website of Will
County Circuit Clerk, https://www.circuitclerkofwillcounty.com/Public-Access, “Case Lookup”
(last visited Nov. 25, 2019). The appellate court affirmed the trial court’s judgment on April 27,
1992. Id. This information indicates that VanSkike did not raise his current claims in that action.
The Randolph County Circuit Clerk’s online records show that on June 27, 1997 VanSkike filed a

habeas corpus action, No. 1997-MR-53, that was dismissed on August 27, 1997,and a mandamus
case, No. 2001-MR-79, that was dismissed on March 13, 2002. Case search website for Randolph
County Circuit Clerk, https://www.judici.com/courts/cases/case_ search.jsp?court=IL079015J
(last visited Nov. 25, 2019). The dates of dismissal of these cases likewise suggest that VanSkike
would not have been able to raisea claim for immediate release in those actions.Further, VanSkike
does not assert that any of these actions served to exhaust his state court remedies with respect to
his current claims.
The state mandamus procedure under 735 ILCS 5/14-101,et seq.,is available to VanSkike
to pursue his sentence calculation claim, and it has the potential to result in an earlier release date

than the IDOC has previously calculated. He also may avail himself of the state habeas corpus
procedure by filing in the appropriate circuit court; nothing in the Illinois Supreme Court’s
dismissal order indicates that avenue is closed to him. See Crump v. Lane, 807 F.2d 1394, 1395-
96 (7th Cir. 1986) (Illinois Supreme Court’s summary denial of a motion for leave to file an
original action is not an adjudication on the merits that would bar a petitioner from seeking relief
in circuit court).VanSkike’sstate filings to date have not given the Illinois courts an “opportunity
to address and correct alleged violations” of his rights. See Coleman v. Thompson, 501 U.S. 722,
731 (1991).Such an opportunity is particularly important here, as VanSkike’s sentence calculation
arguments rest primarily on state law and regulations. See U.S. ex rel. Johnson v. McGinnis, 734
F.2d 1193, 1200 (7th Cir. 1984) (“state courts should have the first opportunity ‘to mend their own
fences.’”).
CONCLUSION
VanSkike has not exhausted the remedies that are available to him in state court for redress
of his claims. See 28 U.S.C. §2254(b)(1) and (c). Accordingly, his Habeas Petition shall be

dismissed without prejudiceas prematurely filed.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court must “issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” A
certificate should be issued only where the petitioner “has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §2253(c)(2).
In order for a certificate of appealability to issue, a petitioner must show that “reasonable
jurists” would find this Court’s “assessment of the constitutional claims debatable or wrong.” See
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Buck v. Davis, 137 S. Ct. 759, 773 (2017). Where a

petition is dismissed on procedural grounds without reaching the underlying constitutional issue,
the petitioner must show both that reasonable jurists would “find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
Here, no reasonable jurist would find it debatable whether this Court’s ruling on the issue
of exhaustion is correct. Accordingly, the Court denies a certificate of appealability.
VanSkike may reapply for a certificate of appealability to the United States Court of
Appeals, Seventh Circuit. SeeFED.R.APP.P. 22(b); 28 U.S.C. § 2253(c)(1).
DISPOSITION
Respondent’s Motion to Dismiss Habeas Corpus Petition as Unexhausted (Doc. 12) is
GRANTED. This action is DISMISSED. Dismissal is WITHOUT PREJUDICE to VanSkike
pursuing his claims in a new action, but only after he has exhausted his state court remedies.
The Clerk of Court is DIRECTED to close this case and enter judgment accordingly.
If VanSkike wishes to appeal the dismissal of this action, his notice of appeal must be filed
with this Court within 30 days of the entry of judgment. FED. R. App. P. 4(a)(1(A). A motion for
leave to appeal in forma pauperis (“IFP’’) must set forth the issues VanSkike plans to present on
appeal. See FED. R. App. P. 24(a)(1)(C). If VanSkike does choose to appeal and is allowed to
proceed IFP, he will be liable for a portion of the $505.00 appellate filing fee (the amount to be
determined based on his prison trust fund account records for the past six months) irrespective of
the outcome of the appeal. See FED. R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger,
547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien
v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to
Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R. App. P. 4(a)(4).
A Rule 59(e) motion must be filed no more than twenty-eight (28) days after the entry of the
judgment, and this 28-day deadline cannot be extended. Other motions, including a Rule 60 motion
for relief from a final judgment, do not toll the deadline for an appeal.
IT IS SO ORDERED.
DATED: November 26, 2019
Nee Gooey?
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151248. Public record. Not legal advice.