U.S. ex rel. Rickard v. Sternes

Decision Date07 June 2001
Docket NumberNo. 00 C 7069.,00 C 7069.
Citation149 F.Supp.2d 437
PartiesUNITED STATES of America, ex rel. Christopher RICKARD, Petitioner, v. Jerry STERNES, Warden; and Donald Snyder, Director of the Illinois Department of Corrections, Respondents.
CourtU.S. District Court — Northern District of Illinois

Stephanie L. Matthews, Orum & Roth, Chicago, IL, for petitioners.

Colleen M. Griffin, Illinois Attorney General's Office, Chicago, Il, for respondents.

OPINION AND ORDER

NORGLE, 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.

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.1 (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 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.2 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 in a 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 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").)3

In April 1996, Rickard learned that his step-mother, who lived in England, was dying.4 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 Illinois 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 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"5 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 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 rights 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 resentence him to a determinate term, while taking into account all mitigating factors, such as age, time served, model 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.6

II. DISCUSS...

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