                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53


           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted October 26, 2006*
                            Decided November 14, 2006

                                       Before

                     Hon. FRANK H. EASTERBROOK, Circuit Judge

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

No. 06-1936

MARSHAWN THOMAS,                                Appeal from the United States
    Petitioner-Appellant,                       District Court for the Northern
                                                District of Illinois, Eastern Division.
      v.
                                                No. 05 C 3307
GREGORY C. SIMS, Warden,
    Respondent-Appellee.                        Virginia M. Kendall,
                                                Judge.

                                     ORDER

       Marshawn Thomas petitions for a writ of habeas corpus, challenging the
Illinois Department of Corrections’s (IDOC) calculation of good conduct credits
under his concurrent sentences for home invasion, armed robbery, and aggravated
kidnaping for ransom. The district court dismissed Thomas’s petition on the merits,
finding that the IDOC had properly calculated his good conduct credits under the
Illinois Rules and Regulations for Early Release. See 730 ILCS 5/3-6-3. We affirm
on the ground that Thomas has not been denied a federal right.



      *
        After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-1936                                                                        Page 2

       Thomas pleaded guilty in the Circuit Court of Cook County to charges of
home invasion, armed robbery, and aggravated kidnaping, see 720 ILCS 5/12-
11(a)(3), 18-2(a)(2), 10-2(a)(1), and was sentenced to three concurrent 12-year terms
of imprisonment. He did not appeal his conviction or sentence. Thomas filed four
separate motions for post-conviction review in the Circuit Court of Cook County;
they each challenged the IDOC’s calculation of his good conduct credits. All four
motions were denied, and Thomas did not appeal. Thomas then wrote to the Record
Office Supervisor at Taylorville Correctional Center, where he was incarcerated,
again challenging the calculation of his good conduct credits. The Record Office
disagreed. So Thomas filed a motion for leave to file a “petition for writ of habeas
corpus and for certain other relief” in the Illinois Supreme Court. See Thomas v.
Sims, No. M11402. The court denied the motion.

       Thomas then filed this petition in the United States District Court for the
Northern District of Illinois, claiming that IDOC’s calculation of his good conduct
credits under the Illinois Rules and Regulations for Early Release violated the Due
Process Clause of the Fourteenth Amendment. Specifically, he claimed that he
should have received day-for-day good conduct credit (rather than 4.5 days per
month) for his aggravated kidnaping sentence and that, had he received such credit,
he would no longer be in custody.

       Thomas bases his petition on a challenge to the rationality of the Illinois
sentencing and early release statutes: in Illinois, sentencing courts are required to
make a finding as to whether a defendant convicted of aggravated kidnaping for
ransom, home invasion, armed robbery and certain other offenses, caused “great
bodily harm” to the victim. See 730 ILCS 5/5-4-1(c-1). Absent such a finding,
inmates convicted of any of these offenses—except aggravated kidnaping for
ransom—will receive day-for-day good conduct credits. See 730 ILCS 5/3-6-
3(a)(2)(iii). Inmates convicted of aggravated kidnaping, meanwhile, will only
receive 4.5 days per month for good conduct even in the absence of a finding of great
bodily harm. See 730 ILCS 5/3-6-3(a)(2)(ii). In Thomas’s case, his sentencing judge
did not make a finding of great bodily harm. Thomas argues that the Illinois
legislature could not have rationally intended to deny day-for-day credit in an
aggravated kidnaping case without a finding of great bodily harm because the
legislature requires such a finding for all of the other offenses listed in section 5/5-4-
1(c-1). See 730 ILCS 5/3-6-3(a)(2)(iii).

      In its decision, the district court declined to address whether Thomas had
exhausted his state procedural remedies. See 28 U.S.C. § 2254(b)(2) (“an
application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State”). Instead, the court found that the good conduct credits
were properly calculated based on the plain meaning of the Illinois statute. Thomas
No. 06-1936                                                                     Page 3

now appeals, reasserting his claim on the merits. The State, meanwhile, argues
(1) that Thomas failed to exhaust state remedies; (2) that Thomas’s claim is time-
barred; (3) that Thomas’s claim is not cognizable under federal law; and (4) that
Thomas’s claim fails on the merits.

      In reviewing a district court’s decision to deny a writ of habeas corpus, we
review issues of law de novo and issues of fact for clear error. Simpson v. Battaglia,
458 F.3d 585, 592 (7th Cir. 2006). Even though it appears that Thomas failed to
exhaust his remedies in state court, see O’Sullivan v. Boerckel, 526 U.S. 838, 845-58
(1999), we may deny his petition on the merits. See 28 U.S.C. § 2254(b)(2).

       In this case, Thomas is not in custody in violation of the United States
Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a). The
district court characterized Thomas’s claim as a challenge under the Due Process
Clause of the Fourteenth Amendment and then analyzed whether he was entitled to
day-for-day good conduct credit under Illinois law. We analyze Thomas’s claim
differently because he does not allege that the Illinois Rules and Regulations for
Early Release confer a right to day-for-day good conduct credit on inmates convicted
of aggravated kidnaping, nor does he allege that he was denied good conduct credit
as a result of inadequate or faulty procedures.

       Rather, Thomas argues that he has been denied due process because, in his
view, Illinois irrationally excludes aggravated kidnaping from the list of offenses for
which a convict is guaranteed day-for-day good conduct credit absent a finding of
great bodily harm. But a state legislature may select different prison terms for
different crimes without offending due process. See Rummel v. Estelle, 445 U.S.
263, 282-84 (1980); Rodriguez v. Peters, 63 F.3d 546, 568 (7th Cir. 1995) (state
legislatures are free to determine the nature and extent of punishment for different
crimes, subject only to Eighth Amendment requirements); cf. Sattazahn v.
Pennsylvania, 537 U.S. 101, 115-16 (2003) (noting that the courts should not expand
the reach of the Due Process Clause when it would unduly interfere with
“considered legislative judgments and the careful balance that the Constitution
strikes between liberty and order”). Thus, the Illinois legislature’s decision to deny
inmates convicted of aggravated kidnaping day-for-day good conduct credit does not
offend the Due Process Clause of the Fourteenth Amendment.

      Accordingly, the judgment of the district court is AFFIRMED.
