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United States District Court, N.D. Illinois, Eastern Division

December 1, 2005.

UNITED STATES OF AMERICA ex rel. EDGAR WHERRY #2004-0094928, Petitioner,

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


Edgar Wherry ("Wherry") has submitted a self-prepared Petition for Writ of Habeas Corpus ("Petition") together with an In Forma Pauperis Application ("Application") and a Motion for Appointment of Counsel ("Motion"), with the latter two documents being forms provided by this District Court's Clerk's Office as filled in by Wherry's handwritten entries. Wherry's Petition challenges his confinement at the Cook County Department of Corrections ("County Jail") pending his trial on what he describes as an alleged violation of 720 ILCS 5/12-14.1(a) (1). This memorandum opinion and order will deal with both the procedural and the substantive problems posed by Wherry's filings.

First, Wherry asks for relief under two statutes — 28 U.S.C. §§ 2241 and 2254.*fn1 It is uncertain whether Wherry's pretrial detention at the County Jail qualifies as "being in custody pursuant to the judgment of a State court" (Section 2254(a), with emphasis added), while Section 2241(c) (3) specifically extends to prisoners "in custody in violation of the Constitution . . . of the United States," as Wherry claims to be the case. Accordingly this opinion will view Wherry's claims through the lenses provided by both statutes as well as by the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules").

  Next, Wherry has not coupled his Application with a certified copy of his trust fund account statement at the County Jail as is required by Section 1915(a) (2), even though the Application form expressly notifies each applicant of that requirement and provides a place for a related financial certification by the custodial institution. This Court will not, however, require Wherry to comply with that requirement, because the filing fee for a federal habeas petition is only $5, rather than the $250 fee required for other civil actions. It would be truly surprising if Wherry, despite his showing of poverty, could not meet that modest requirement, and this Court therefore orders him to transmit that amount to the Clerk of Court at the following address on or before December 23, 2005 (with his check or money order to refer to Case No. 05 C 6770, so that the payment will be properly credited): Office of the Clerk United States District Court 219 South Dearborn Street Chicago IL 60604

  Attention: Fiscal Department

  As for the Petition itself, Wherry obviously labors under the misapprehension that the federal court system provides a haven of first resort rather than last resort for someone in state custody who claims that his federal constitutional rights have been violated. To the contrary, Section 2254(b) (1) prohibits the granting of federal habeas relief "unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State," and Section 2241 similarly requires the exhaustion of state remedies before an applicant may turn to the federal courts for relief.

  Nothing in the Petition reflects that Wherry's claims of federal constitutional deprivation have ever been presented to the state court system for determination, as they must be in the first instance, let alone containing the required showing that he has exhausted the remedies available there. In the words of Section 2254 Rule 4,*fn2 then, "it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court," so that the same Rule mandates the dismissal of the Petition and this action. This Court so orders.*fn3


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