December 18, 2013
CARLOS WHITEHEAD, No. 31974-044, Petitioner,
WARDEN JAMES CROSS,  Respondent.
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
Petitioner Carlos Whitehead, by and though counsel, brings this action pursuant to 28 U.S.C. § 2241 for a writ of habeas corpus. Whitehead is challenging his 2006 conviction and life sentence for manufacturing and possessing cocaine base ("crack cocaine") with intent to distribute (21 U.S.C. § 841(a)(1)). United States v. Whitehead, No. 04-cr-531-JCH (E.D.Mo. Aug. 25, 2006). He contends that he is "actually innocent" of the drug offense because the substance was not "crack" cocaine; rather, it was a mixture in transition. Whitehead also claims that he is actually innocent, in the sense of there having been a miscarriage of justice. Whitehead seeks resentencing.
Whitehead acknowledges that his argument was not presented on appeal, nor was it raised in a motion under 28.U.S.C. § 2255. He relies upon the Seventh Circuit's recent decision in Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013), which allowed Section 2241 to be used to present otherwise defaulted claims to attack a sentencing enhancement where there was a grave enough error to constitute a miscarriage of justice.
There is insufficient information before the Court upon which to conclude that dismissal at this preliminary stage pursuant to Rule 4 is appropriate. Therefore, Respondent Cross will be required to respond or otherwise plead.
IT IS HEREBY ORDERED that respondent shall answer the petition or otherwise plead within thirty days of the date this order is entered. This preliminary order to respond does not, of course, preclude the State from making whatever waiver, exhaustion or timeliness it may wish to present. Service upon the United States Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this cause is referred to United States Magistrate Judge Clifford J. Proud for further pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to United States Magistrate Judge Clifford J. Proud for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral.
The Clerk of Court is DIRECTED to correct the docket to reflect the name of the respondent: Warden James Cross. See FED.R.CIV.P. 17(d); FED.R.CIV.P. 21. In any future documents filed in this case, petitioner shall identify the Warden by his proper name. David R.
IT IS SO ORDERED.