Railey

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

BRET G. RAILEY,

Petitioner,

v. 1:24-cv-1364-JEH

CHRISTEL CROW, Warden,

Respondent.

Order and Opinion

Before the Court is Petitioner Bret G. Railey’s Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Petitioner is currently serving a 100-

year imprisonment sentence imposed by the Tazewell County Circuit Court, in

Pekin, Illinois, after he was found guilty of home invasion and two counts of

aggravated criminal sexual assault at a bench trial. Petitioner challenges both his

conviction and sentence. For the reasons below, the Court DENIES the Petition

and DECLINES to issue a certificate of appealability.

I1

A

In 1995, when Petitioner was 17 years old, he broke into the home of an 88-

year-old woman, sexually assaulted her, stabbed her, and stole money from her

1 The facts are taken from the undisputed facts in Respondent’s Response (Doc.

10), which are consistent with the official records from Petitioner’s state court

proceedings, which Respondent attached to the response (Doc. 11; People v. Railey, 2023

IL App (3d) 210310-U). See 28 U.S.C. § 2248 (“The allegations of a return to the writ of

habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding,

if not traversed, shall be accepted as true except to the extent that the judge finds from

the evidence that they are not true.”). The factual determinations of the state court are

purse. Petitioner was subsequently charged with home invasion and two counts

of aggravated sexual assault in the Circuit Court of Tazewell County.

Petitioner waived his right to a jury trial. A stipulated bench trial was held

in April 1997. People v. Railey, 2023 IL App (3d) 210310-U, ¶ 4. The parties

stipulated that the victim, L.H. would testify that she was born in 1907 (making

her 88 at the time of the offense). On November 22, 1995, she heard a knock at her

door. Id. When she opened the door, Petitioner, whom she did not know, forced

his way into her home. He forced L.H. onto the floor of her living room, pulled

down her pants, and, without her consent, inserted his penis into her vagina and

anus. Id. He then went to the dining room and took money L.H. had in an

envelope. He returned to the living room and told L.H. to close her eyes because

he was going to blind her so she could not identify him. Id. Petitioner stabbed L.H.

below each eye. He then went through her purse and left. Id.

Officer J.M. Phillips’s stipulated testimony included that he responded to

L.H.’s house and found her with puncture wounds under her eyes. Id. ¶ 5. Dr. Gene

Couri’s stipulated testimony provided that he treated L.H. in the emergency

department of the St. Francis Medical Center and observed “a strong probability

of ejaculation in both the vaginal and anal cavities” when he completed the Illinois

State Police sexual assault kit. Id. Next, Illinois State Police forensic scientist Kevin

Zeeb’s stipulated testimony established that semen was recovered from L.H.’s

clothing and that DNA from the semen matched Petitioner’s DNA profile. Id.

Morton Police Department Detective Bill Roth’s stipulated testimony

included that L.H. was able to identify Petitioner as her attacker from a photo

presumed to be correct, unless a petitioner rebuts the presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

array. Id. ¶ 6. Roth also interviewed Petitioner, who admitted to vaginally and

anally penetrating L.H. with his penis and cutting her beneath each of her eyes. Id.

The trial judge found Petitioner guilty of the home invasion and two counts

of aggravated sexual assault. Petitioner was sentenced to a total of 100-years

imprisonment, consisting of two consecutive 50-year imprisonment terms for each

aggravated sexual assault and a concurrent 50-year imprisonment sentence for the

home invasion. The trial judge found that the imprisonment term would be served

at 85% of the total.

B

Petitioner appealed, arguing that the trial judge erred by denying his motion

to suppress his confession. The appellate court rejected the argument and affirmed

his conviction on May 17, 1999. See Doc. 11-1; People v. Railey, 305 Ill. App. 3d 1121

(1999). However, the appellate court modified the sentencing order to clarify that

Petitioner was eligible for day-for-day good time credits that could reduce his

sentence. Petitioner did not file a Petition for Leave to Appeal (PLA) with the

Illinois Supreme Court.

C

Twenty-two years later, in 2021, Petitioner filed a state postconviction

petition challenging the constitutionality of his sentence based on the United States

Supreme Court’s ruling in Miller v. Alabama, 567 U.S. 480 (2012). By agreement of

the parties, the trial court vacated Petitioner’s sentencing judgment and held a

resentencing hearing.

At the resentencing hearing, the parties submitted the trial record, the pre-

sentence report from the original sentencing hearing and a report prepared by a

social worker retained by Petitioner. At the hearing, Petitioner also spoke and took

responsibility for his actions, stating: “It’s hard for me to stand up here and know

what I did 25 years ago and the responsibility that I have to bear for that and the

pain I have caused [L.H.]’s family and also my family.” (Doc. 11-9 at 40).

The resentencing judge stated that in making her ruling she had considered

“the evidence and arguments presented,” “the entire court file” and “the Miller

factors contained in 730 ILCS 5/5-4.5-105.” (Doc. 11-9 at 41). While stating that she

had “nothing but compassion for the young man that [Petitioner] [was] and the

thing that [he] had to endure when [he] [was] a child,” id. at 42, she also

“considered the circumstances of the offense, and, boy, you can’t take that back,”

id. at 43. Considering all the factors, the judge found that there was “irretrievable

depravity, permanent incorrigibility and irreparable corruption beyond the

possibility of rehabilitation.” Id. at 45.

The resentencing judge also found that “in committing the Class X

aggravated criminal sexual assault and the Class X home invasion [Petitioner’s]

extremely brutal and heinous behavior [] warranted an extended term sentence

because that person was sufficiently over the age of 60, and I’m going to impose

an extended term sentence as to Counts 2 and Count 3.” Id. The judge then

resentenced Petitioner to the same term of imprisonment: 50 years of

imprisonment on Counts 2 and 3 to be served consecutively, along with a 50 year

concurrent term of imprisonment on Count, to be served with day-for-day credit.

Id.

D

Petitioner appealed his resentencing, arguing (1) that the sentencing court

failed to properly consider the mitigation factors for minor defendants under 730

ILCS 5/5-4.5-105(a); and (2) that the extended term sentences imposed violated

Apprendi v. New Jersey, 530 U.S. 466 (2000). People v. Railey, 2023 IL App (3d) 210310-

U. The Illinois Appellate Court affirmed the sentence. It found that the sentencing

transcript shows that the sentencing court properly considered all relevant

mitigating factors and Petitioner’s disagreement with the weight the court gave to

the seriousness of the offense did not show an abuse of discretion. Id. ¶ 14.

The State conceded on appeal that the trial court violated Apprendi. Id. ¶ 18.

However, the Illinois Appellate Court agreed with the State that the error was

harmless because there was overwhelming evidence that the crime was committed

in a brutal and heinous manner indicative of wanton cruelty and overwhelming

evidence that the victim was over 60 years of age given the stipulation that she

was born in 1907. Id. ¶¶ 19–20.

Petitioner filed a PLA with the Illinois Supreme Court raising the same

grounds, which was denied on September 27, 2023. People v. Railey, 221 N.E.3d 365

(Ill. 2023).

E

Petitioner filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254 on September 30, 2024. He raises five grounds for relief:

(1) Petitioner received ineffective assistance of counsel in violation of

the Sixth Amendment when his trial counsel failed to conduct any

investigation in the case and present a defense and when his appellate

counsel failed to address any of the trial issues on appeal;

(2) Petitioner’s due process rights were violated because he was

mentally incompetent at the time of his arrest and trial and not able

to assist in his own defense;

(3) Petitioner’s due process rights were violated because his defense

counsel acted on his father’s behest in waiving the right to a jury trial

and confrontation of witnesses rather than in the best interests of

Petitioner;

(4) The resentencing court violated Apprendi, 530 U.S. 466, when it

imposed extended-term sentences; and

(5) Petitioner’s de facto life sentence for a crime he committed when

he was a juvenile violates the Eighth Amendment.

Respondent filed its response to the Petition and argues that Petitioner’s claims

are either procedurally defaulted, meritless, or non-cognizable. (Doc. 10).

Petitioner filed a timely reply. (Doc. 15).

After finding that Petitioner had arguably raised a claim under Graham v.

Florida, 560 U.S. 48 (2010), the Court ordered additional briefing addressing

Petitioner’s eligibility for parole under 730 ILCS 5/5-4.5-115(b) and whether such

eligibility satisfies the Eighth Amendment requirements for juvenile nonhomicide

offenses as explained in Graham v. Florida, 560 U.S. 48 (2010), regardless of whether

Petitioner’s sentence is a de facto life sentence. The parties have filed their

additional briefs. See Doc. 17, 18. The matter is now ripe for review.

II

A

Petitioner’s first three grounds of relief are procedurally defaulted and the

Court finds that this default cannot be excused. Prior to considering the merits of

a petitioner’s claims, federal courts “must consider which claims have been

procedurally defaulted.” Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018); see also

Davila v. Davis, 582 U.S. 521, 527–28 (2017)(Federal courts may not review state

prisoners’ habeas claims that have been “procedurally defaulted in state court,” a

doctrine that advances “comity, finality, and federalism interests.”). “A state

prisoner can procedurally default a federal claim if he fails to ‘fairly present’ it

‘throughout at least one complete round of state-court review, whether on direct

appeal of his conviction or in post-conviction proceedings,’” Clemons v. Pfister, 845

F.3d 816, 819 (7th Cir. 2017) (quoting Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir.

2014)), and “it is clear that those courts would now hold the claim procedurally

barred,” Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). Accordingly, “[s]tate

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process,” which in Illinois requires the petitioner to “include his

claims in a petition for leave to appeal to the Illinois Supreme Court.” Snow, 880

F.3d at 864 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845–46 (1999)).

Here, Petitioner’s ineffective assistance of counsel claims and due process

claims in grounds 1, 2, and 3, were not presented in his direct appeal or state

postconviction petition, so they are procedurally defaulted.

Moreover, Petitioner has not shown cause to excuse his procedural default.

“Procedural default may be excused . . . where the petitioner demonstrates either

(1) ‘cause for the default and actual prejudice’ or (2) ‘that failure to consider the

claims will result in a fundamental miscarriage of justice.’” Snow, 880 F.3d at 864

(quoting Thomas, 822 F.3d at 386). “[T]he miscarriage of justice exception applies

only in the rare case where the petitioner can prove that he is actually innocent of

the crime of which he has been convicted.” Wilson v. Cromwell, 69 F.4th 410, 421

(7th Cir. 2023) (internal citations omitted).

Petitioner has not presented any basis to excuse his default and the Court

finds no reason apparent from the record. While Petitioner seeks to bring a claim

that his appellate counsel was ineffective for failing to argue the ineffectiveness of

his trial counsel and raise his other claims, this claim is itself procedurally

defaulted. To the extent that Petitioner would fault his direct appeal counsel for

failing to raise this issue, he would have needed to raise that claim of ineffective

assistance of appellate counsel in his state postconviction proceedings to avoid

procedural default, and he did not. Edwards v. Carpenter, 529 U.S. 446, 453 (2000)

(“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural

default of another claim can itself be procedurally defaulted,” and to proceed a

petitioner must “satisfy the cause-and-prejudice standard with respect to that

claim”); see also, Davila v. Davis, 582 U.S. 521, 529 (2017) (A federal court is not

allowed “to hear a substantial, but procedurally defaulted, claim of ineffective

assistance of appellate counsel when a prisoner’s state postconviction counsel

provides ineffective assistance by failing to raise that claim.”).

Moreover, there is no right to post-conviction counsel, so errors of post-

conviction counsel that led to the default of “claims in state court cannot constitute

cause to excuse the default in federal habeas.” Coleman v. Thompson, 501 U.S. 722,

757 (1991). Petitioner argues that the exceptions to Coleman announced in Martinez

v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413, 429 (2013), should

apply. However, the Seventh Circuit has held that this exception does not apply

to ineffective assistance of counsel claims brought in Illinois because Illinois does

not impose the kind of repressive procedural rules on Strickland claims that

Martinez and Trevino found warranted an exception. Crutchfield v. Dennison, 910

F.3d 968, 971 (7th Cir. 2018). Accordingly, the Court finds that Petitioner’s first

three grounds for relief must be dismissed as procedural defaulted

B

Petitioner next argues that he is entitled to resentencing because the state

court violated Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme

Court held that due process requires that any fact that increases the penalty for a

state crime beyond the statutory maximum, other than a prior conviction, must be

submitted to the factfinder at trial (here, the judge in petitioner’s 1997 stipulated

bench trial) and the factfinder must find that the prosecution proved the sentence-

increasing factor beyond a reasonable doubt. 530 U.S. at 490; see also Mack v.

McCann, 530 F.3d 523, 536 (7th Cir. 2008) (noting that Apprendi applies to trial judge

in bench trials). Normally, Petitioner’s convictions of home invasion and

aggravated criminal sexual assault are subject to prison sentences of 6 to 30 years.

However, Illinois law provides that a defendant is subject to an extended sentence

of up to 60 years for each offense if the victim was over 60 years old or the offense

involved “exceptionally brutal or heinous behavior indicative of wanton cruelty.”

See 730 ILCS 5/5-5-3.2(b)(3)(ii) (victim 60 years of age or older); 730 ILCS 5/5-5-

3.2(b)(2) (exceptionally brutal or heinous behavior indicative of wanton cruelty).

However, the indictment filed in 1995 did not provide notice that the prosecution

intended to seek extended sentences and the judge at Petitioner’s stipulated bench

trial did not make an express finding that the facts used to impose Petitioner’s

extended-term sentences were proved beyond a reasonable doubt. Nonetheless,

the resentencing court found that the victim was over the age of 60 and that

Petitioner’s offenses involved exceptionally brutal or heinous behavior indicative

of wanton cruelty, and, therefore, sentenced him to an extended terms of 50 years

in prison on each of his three convictions (two of which were to be served

concurrently).

Petitioner raised his Apprendi claim on direct appeal from his resentencing,

so the state court’s decision on this ground is entitled to deference under 28 U.S.C.

§ 2254(d)(1). Where a state court has adjudicated a petitioner’s claims on the

merits, pursuant to § 2254(d), “[a] federal court may grant a federal petition for

habeas corpus only if the state court’s ruling on the federal constitutional question

‘was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court,’ or ‘was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.’” Snow, 880 F.3d at 863–64 (quoting 28 U.S.C. § 2254(d));

See also Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018) (when a state court

resolves a claim on the merits, “a federal habeas court simply reviews the specific

reasons given by the state court and defers to those reasons if they are

reasonable.”).

“[A] decision is deemed “contrary to” clearly established federal law if the

state court reached ‘a conclusion opposite to that’ of the Supreme Court on a legal

matter [ ] or if the state court arrived at an outcome in direct contradiction to a

‘materially indistinguishable’ case decided by the Supreme Court.” Gambaiani v.

Greene, No. 23-2690, 2025 WL 1378148, at *3 (7th Cir. May 13, 2025) (quoting

Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an

“unreasonable application of” clearly established federal law if the state court

“identifies the correct governing legal rule from [Supreme Court] cases but

unreasonably applies it to the facts of the particular state prisoner’s case.” Coleman

v. Hardy, 690 F.3d 811, 814 (7th Cir. 2012) (quoting Williams v. Taylor, 529 U.S. 362,

407 (2000). However, “federal courts are cautious to grant relief, reviewing state-

court factual findings with a healthy dose of deference. . . . The proper inquiry

focuses [ ] on whether the alleged factual error is beyond debate.” Gambaiani, 2025

WL 1378148, at *4.

The Illinois Appellate Court agreed that an Apprendi error had occurred, but

held that the error was harmless. Railey, 2023 IL App (3d) 210310-U, ¶¶ 17-20. The

Illinois Appellate Court correctly determined that the harmless-error analysis

applied to Apprendi violations: The Supreme Court held in Washington v. Recuenco,

548 U.S. 212 (2002), that the “[f]ailure to submit a sentencing factor to the jury, like

failure to submit an element to the jury, is not structural error.” 548 U.S. at 222.

Accordingly, a failure to submit a sentencing factor to the jury—or in the case of a

bench trial, the judge— is subject to harmless-error analysis. Id. at 220.

And, the Illinois Appellate Court’s harmless-error analysis was a reasonable

application of federal law and was reasonably applied to the facts of Petitioner’s

case. To find a nonstructural constitutional error harmless, the Supreme Court has

instructed that “the court must be able to declare a belief that it was harmless

beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967); see also

Neder v. United States, 527 U.S. 1, 7 (1999). Relying on Illinois caselaw, the Illinois

Appellate Court stated that “[a]n Apprendi violation does not warrant resentencing

‘where there is overwhelming evidence that the crime was committed in a brutal

and heinous manner indicative of wanton cruelty.’” People v. Railey, 2023 IL App

(3d) 210310-U, ¶ 19, (quoting People v. Kaczmarek, 207 Ill. 2d 288, 302 (2003)). The

Illinois Appellate Court reviewed the stipulated facts of Petitioner’s case “where

[Petitioner] stabbed the victim in her eyes after raping her so that she could not

identify him later.” Railey, 2023 IL App (3d) 210310-U, ¶ 19. It then concluded that

they had “no doubt that a jury, presented with these facts, would have found that

the crime was committed in a brutal and heinous manner, indicative of wanton

cruelty.” Id. (quoting People v. Kaczmarek, 207 Ill. 2d 288, 304 (2003)). Moreover,

“there was overwhelming evidence that the victim was over 60 years of age given

the stipulation that she was born in 1907.” Id. The state court’s conclusion that it

had “no doubt” the jury would have reached the same conclusion satisfies the

requirement that “the court must be able to declare a belief that it was harmless

beyond a reasonable doubt.” Chapman, 386 U.S. at 24. Moreover, in conducting the

analysis, the state court reasonably applied the stipulated facts of the case to the

Illinois law regarding when the enhancement applies. Accordingly, the Court

finds that the Illinois Appellate Court’s decision is entitled to deference under

§ 2254(d)(1).

C

Finally, Petitioner claims that he is entitled to relief because Petitioner’s de

facto life sentence for a crime he committed when he was a juvenile violates the

Eighth Amendment. Notably, Petitioner’s crime was not homicide, so his Eighth

Amendment claim analysis starts with the Supreme Court’s decision in Graham v.

Florida, 560 U.S. 48 (2010). Graham held that the Eighth Amendment “prohibits the

imposition of a life without parole sentence on a juvenile offender who did not

commit homicide.” 560 U.S. at 82. This holding is different than the Supreme

Court’s rule from Miller v. Alabama, 567 U.S. 460 (2012), which held that individuals

who committed the offense of homicide when they were under 18 years old may

only be sentenced to life without parole if the sentencing judge has the discretion

to impose a lesser punishment. 567 U.S. at 479. If the crime committed is not

homicide, as is the case here, the Constitution does not allow the imposition of a

life without parole sentence on a juvenile offender regardless of any findings by

the trial judge.

Petitioner’s sentence as pronounced will allow him to be released no earlier

than age 67. Petitioner’s sentence is considered a de facto life sentence under state

law, as it is over 40 years. People v. Buffer, 2019 IL 122327, ¶ 41, 137 N.E.3d 763, 774

(finding a prison sentence of more than 40 years for a juvenile offender to be a de

facto life sentence for purposes of Miller and Graham). Petitioner cannot rely on

state law protections for his § 2254 Petition, see Estelle v. McGuire, 502 U.S. 62, 71–

72 (1991), and, in federal court, the cut off is not so clear. However, the Seventh

Circuit has held that Miller and Graham “cannot logically be limited to de jure life

sentences, as distinct from sentences denominated in number of years yet highly

likely to result in imprisonment for life.” McKinley v. Butler, 809 F.3d 908, 911 (7th

Cir. 2016); see also Hauschild v. Harrington, 732 F. Supp. 3d 839, 860 (N.D. Ill. 2024),

amended, No. 13 CV 5032, 2024 WL 2845987 (N.D. Ill. June 4, 2024) (collecting cases

and concluding that sentences at or slightly below the offender’s life expectancy—

around age 70—should be considered life sentences for purposes of Miller and

Graham).

Nonetheless, as confirmed by the supplemental briefing, Petitioner is

eligible for parole pursuant to Illinois Public Act 100-1182 (eff. June 1, 2019). Under

this Illinois law, a person who was under the age of 21 at the time of the crime,

who was sentenced on or after June 1, 2019, and is serving a sentence for

aggravated criminal sexual assault, shall be eligible to petition for parole after 20

years. 730 ILCS 5/5-4.5-115(b). Respondent has confirmed that Petitioner, having

been resentenced after June 1, 2019, for aggravated criminal sexual assault, is

eligible for parole under the plain terms of the statute. (Doc. 17 at 2). See also, People

v. Beck, 192 N.E.3d 842, 844-46, 850 (Ill. App. Ct. 2021); People v. Cavazos, 232 N.E.3d

80, 98, appeal pending (Nov Term 2023).

Petitioner argues that the parole process is not sufficient to satisfy Graham

because his “genuine prospects for release remain uncertain and highly contingent

upon a parole review process inadequately structed to ensure fair and meaningful

consideration.” (Doc. 18 at 4). The Court disagrees. Graham does not require a State

“to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide

crime.” Graham, 560 U.S. at 75. Rather, States must give such defendants “some

meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.” Id. The statute as written meets the Graham requirements. The

statute allows an offender to commence the parole review process three years

before he is eligible for parole by filing a petition for parole, at which time a

representative from the Department of Corrections must meet with the offender

to discuss the parole review process and make “personalized recommendations”

regarding work assignments, rehabilitative programs, and institutional behavior,

and the offender may request programs be made available that he believes will

help prepare him to return to the community. 730 ILCS 5/5-4.5-115(c), (d).

Furthermore, the offender is permitted to retain counsel or, if he is indigent, is

entitled to the appointment of counsel to represent him during the parole process

and the parole review hearing. Id. § 5-4.5-115(e). At the hearing, the Prisoner

Review Board panel “shall consider,” among other things, “the diminished

culpability of youthful offenders, the hallmark features of youth, and any

subsequent growth and maturity of the youthful offender during incarceration.”

Id. § 5-4.5-115(j). And, if parole is denied, then (1) the Prisoner Review Board must

provide the offender and his counsel a written decision that “states the rationale”

for the denial; and (2) the offender is entitled to petition for parole in another 10

years if he was convicted of first degree murder or aggravated criminal sexual

assault (or five years if he was convicted of a lesser offense). Id. § 5-4.5-115(l), (m).

All of these procedures together ensure that Petitioner will have a meaningful

opportunity to demonstrate his “maturity and rehabilitation” when he becomes

eligible to seek parole.

Petitioner argues that his “theoretical” eligibility for parole “offers no

practical or reliable guarantee that rehabilitation will be meaningfully evaluated

or rewarded.” Petitioner seeks to rely on Brown v. Precythe, 46 F.4th 879, 887 (8th

Cir. 2022), claiming this case struck down Missouri’s parole system for juvenile

offenders. (Doc. 18 at 9). However, the case did the opposite: after reviewing the

factors the parole board is required to consider and the procedures in place, the

court concluded that the parole system provides “some meaningful opportunity”

for an offender to obtain release based on demonstrated maturity and

rehabilitation. Brown, 46 F.4th at 887. The Court reaches the same conclusion here.

The Constitution does not require that Petitioner be guaranteed parole, only a

meaningful opportunity to obtain it. The procedures put in place by the Illinois

statute meet this requirement. Petitioner also argues that the parole board’s

discretion remains largely unchecked. While the Court acknowledges that there is

always a possibility that a parole board will not follow its statutory mandate of

considering “the diminished culpability of youthful offenders, the hallmark

features of youth, and any subsequent growth and maturity of the youthful

offender during incarceration,” at this time Petitioner’s concerns are premature.

Should the Illinois Parole Board disregard the statute in the course of Petitioner’s

parole review, he may seek any appropriate relief at that time. See also, Sanders, 981

F.3d at 644 (noting that the petitioner “is convinced the deck is stacked against his

receiving parole” but finding that “[n]ow is not the time for Sanders to advance

this argument”).

Next, Petitioner argues that the infrequency of the parole review—once

every ten years if initially denied—is insufficient to address the possibility of

rehabilitation and redemption over time. (Doc. 18 at 7). However, nothing in

Graham requires ongoing review of a Petitioner’s rehabilitation and redemption.

See also, Sanders, 981 F.3d at 643 (finding the availability of at least one parole

review prior to the end of a petitioner’s life expectancy was sufficient).

The Court also notes that, in support of his argument that parole will not be

a meaningful opportunity for release, Petitioner argues that the IDOC records

incorrectly state that he is eligible for day-for-day credits, when, pursuant to

statute Petitioner believes he is not. (Doc. 18 at 5). Petitioner argues that “[i]f the

agency responsible for maintaining accurate sentence calculations cannot correctly

represent a juvenile offender’s basic release eligibility—even post sentencing—

then it cannot credibly claim to administer a constitutionally sufficient parole

scheme.” Id. at 6. However, the resentencing transcript is clear that the parties

agreed the sentence was required to be served day-for-day. See Doc. 11-9 at 42–43.

Specifically, Petitioner’s attorney stated that “I think we have a right to elect to be

sentenced under the law at the time[,] which was found unconstitutional, and,

therefore, it is I think required to be served day-for-day.” Id. The Court responded

that she would not change that Petitioner would be entitled to day-for-day credit

and that Petitioner is “entitled to whatever credit he has accrued to date.” Id.

Moreover, both Respondent’s brief and the IDOC website confirm that Petitioner

is eligible for and earning good time credit. Accordingly, the Court finds that the

record is clear that Petitioner is eligible for and earning day-to-day credit.

Accordingly, the Court finds that Petitioner’s sentence as executed does not

violate the Eighth Amendment. His fifth claim is, therefore, denied as well.

III

Should Petitioner wish to appeal this decision, he must obtain a certificate of

appealability. 28 U.S.C. § 2253(c)(1). A certificate may issue “only if the applicant

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This will hold true only when “reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack

v. McDaniel, 529 U.S. 473, 484 (1995). Where a claim is resolved on procedural

grounds, a certificate of appealability should issue only if reasonable jurists could

disagree about the merits of the underlying constitutional claim and about whether

the procedural ruling was correct. Flores-Ramirez v. Foster, 811 F.3d 861, 865 (7th

Cir. 2016). Here, the Court does not find that reasonable jurists could disagree that

the Petitioner’s claims are procedurally defaulted, entitled to deference under 28

U.S.C. § 2254(d), not cognizable in federal review, and/or meritless. The Court

declines to issue a certificate of appealability.

IV

The Clerk of Court is directed to enter judgment as follows: Petitioner Bret

Railey’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1)

is DENIED. The Court DECLINES to issue a certificate of appealability. This case

is CLOSED.

It is so ordered.

Entered on October 24, 2025.

s/Jonathan E. Hawley

U.S. DISTRICT JUDGE