United States District Court, N.D. Illinois, Eastern Division
December 1, 2005.
UNITED STATES OF AMERICA ex rel. EDGAR WHERRY #2004-0094928, Petitioner,
DIRECTOR OF COOK COUNTY JAIL (COOK COUNTY DEPARTMENT OF CORRECTIONS), et al., Respondents.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
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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