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UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
Christopher Rickard,
Petitioner-Appellant,
v.
Jerry Sternes,
Respondent-Appellee.
June 4, 2002, Argued
August 5, 2002, Decided
NOTICE:
RULES OF THE SEVENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Christopher Rickard is a citizen
of the United Kingdom who emigrated to the United States. He was convicted of
killing a co-worker and received an indeterminate sentence of 40-80 years.
Rickard requested a transfer to England to serve out his sentence pursuant to
the Convention on the Transfer of Sentenced Persons. 35 U.S.T. 2867. This treaty permits citizens of a foreign country
to serve their prison term in their native country if the original sentence is
either compatible with the law of their native country or may be changed to a
correspondingly similar sentence in the native country without aggravating the
original sentence. The only indeterminate term that the United Kingdom
recognizes is a life sentence, making Rickard's indeterminate term of 40-80 years
incompatible with British law. Therefore, it is impossible for the United Kingdom to
alter Rickard's sentence without increasing it to a life term, in violation of
the treaty. Rickard asked the Illinois Department of Corrections to convert his
sentence to a determinate number of years. The IDOC denied his request,
claiming that it had no authority to convert Rickard's original sentence into a
determinate term. n1 Rickard then filed a petition for a writ of mandamus,
which the Illinois state courts denied. Rickard then sought habeas corpus
relief in the district court, which was also denied. On appeal, Rickard argues
that the lack of a mechanism by which he could apply to have his sentence
modified violated his right to procedural due process. We find that Rickard
procedurally defaulted and waived his procedural due process claim.
Rickard contends that his
procedural due process right has been violated because of the absence of any
Illinois procedure allowing for a converted sentence. He also makes a perfunctory
argument that he was denied equal protection but this argument was not
developed before the state courts. A petitioner must fairly present federal
constitutional issues to the state courts to preserve the right to have them
considered by federal courts. See
Verdin v. O'Leary, 972 F.2d 1467, 1472-73 (7th Cir. 1992). While Rickard
asserts that he raised his due process argument before the state courts,
neither his petition for a writ of mandamus nor his petition for relief from
judgment claimed that Illinois officials denied him equal protection or due
process of law. Additionally, the state court held that the petition for relief
from judgment was both late and improperly filed, and this is an independent
and adequate finding under state law. See
Coleman v. Thompson, 501 U.S. 722, 729, 115 L. Ed. 2d 640, 111 S. Ct.
2546-30 (1991). Rickard did not file a timely appeal from that finding, and has
procedurally defaulted his claim on that basis as well. See Pozo v. McCaughtry, 286 F.3d 1022,
1024-25 (7th Cir. 2002).
Furthermore, Rickard failed to develop his procedural due process claim
in his habeas corpus petition before the district court. He has cited no
applicable Supreme Court law and did not indicate whether he was making a
procedural or substantive due process
claim. Although Rickard now cites cases and classifies his argument, it is too
late -- failing to raise a [*740] claim adequately before the district court
waives the argument on appeal. See
Varner v. Ill. St. Univ., 226 F.3d 927, 936-37 (7th Cir. 2000).
Even if Rickard had not waived
or procedurally defaulted his due process claim, his claim is still without
merit. To establish a procedural due process violation, Rickard must
demonstrate that the state statute he is challenging created a liberty interest
that would trigger a constitutional violation if fair procedures were not
followed. See Kraushaar v. Flanigan,
45 F.3d 1040, 1048 (7th Cir. 1995). Liberty interests exist only if the statute
or regulation uses mandatory language and substantive standards or criteria for
decisionmaking, rather than vague standards that leave a decisionmaker with
unfettered discretion. See id. (citing Miller v. Henman, 804 F.2d 421, 427 (7th
Cir. 1986)). The statute provides that the governor may authorize the Director
of Corrections to consent to the transfer or exchange of offenders and take any
steps necessary to do so, but such transfers are not required. 730 ILCS
5/3-2-3.1. The statute does not provide a mandatory process by which a transfer
is considered nor does it offer any direction regarding the manner in which the
discretion for making transfers is performed. Therefore, Rickard has no
protectible liberty interest created by 730 ILCS 5/3-2-3.1.
We
have considered Rickard's arguments on appeal and conclude that they are
without merit and we AFFIRM the ruling of the district court.
FOOTNOTE:
n1 In passing, we note that
the Assistant Illinois Attorney General indicated her willingness to write a
letter to the governor seeking a conversion of Rickard's sentence on Rickard's
behalf.