United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
DAVID R. HERNDON, District Judge.
Petitioner is currently incarcerated at the Jackson County Jail. He brings this pro se habeas corpus action pursuant to 28 U.S.C. § 2254, seeking an order to compel the respondent, Jackson County Illinois Circuit Judge William Schwartz, to dismiss all criminal charges against petitioner, release him from jail, and return his bond money in full.
In February 2015, petitioner sought the same relief in a habeas corpus action brought pursuant to 28 U.S.C. § 2241. McLendon v. Schwartz, Case No. 15-cv-210-DRH (S.D. Ill.). At that time, he was awaiting trial on three pending cases. The petition was dismissed without prejudice on March 25, 2015 (Doc. 6 in Case No. 15-cv-210).
This case is now before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." After carefully reviewing the petition, the Court concludes that this action must be dismissed.
According to the petition, McLendon was convicted of attempted burglary in Jackson County Case No. 14-CF-407, on May 7, 2015 (Doc. 1, p. 5). His sentencing was expected to take place on approximately July 8, 2015 (Doc. 1-2, p. 10). At the time this action was filed (on May 28, 2015), petitioner was apparently still awaiting trial on a separate home invasion charge in Jackson County Case No. 15-CF-38 (Doc. 1-1, pp. 5-8; Doc. 1-2, pp. 10-11). In his petition for habeas relief, he does not differentiate between the offense for which he has been convicted in Case No. 14-CF-407 and the still-pending charge in Case No. 15-CF-38, on which he is still a pretrial detainee.
Petitioner rests his argument for dismissal of all state court criminal charges on his "Motion to Dismiss Charges" (Exhibit A), which he filed in both Jackson County cases referenced above. In the motion, petitioner asserts that he is:
[A] foreign state Executive International Organization and Executor of CHRISTIAN MCLENDON ESTATE Agency and/or instrumentality, which is a separate legal person and an organ of myself as defined in 28 U.S.C. [§] 1603(b) foreign to the Jurisdiction of the circuit court of Jackson County....
(Doc. 1-1, p. 1). He notes that under 28 U.S.C. § 1604, a foreign state is immune from the jurisdiction of federal and state courts. He claims to be an "Internationally protected person" under international law, pursuant to Section 1 of the International Organization Immunities Act, 22 U.S.C. § 288, and the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(22). He concludes that he "do[es] not consent to being surety for these proceedings" under the Illinois Compiled Statutes in Jackson County, and states, "I, Mr. McLendon, order this court to dismiss any and all charges and immediately release me from the detention of Jackson County Jail." (Doc. 1-1, p. 2).
In the petition, he states that after he became aware of his "immunity, " he refused to cooperate with his appointed public defender and attempted to fire her. Respondent Judge Schwartz initially refused petitioner's attempt to file his motion to dismiss (Exhibit A), but it was filed on February 20, 2015. On March 31, 2015, the judge informed petitioner that his motion had been denied, but no hearing was ever held on the motion. Petitioner objected and refused to consent to the proceedings, and asked to represent himself. However, petitioner stated that he could not conduct a jury trial. The judge ordered the public defender to continue her representation (Doc. 1, p. 2). Counsel's motion for substitution of judge was denied.
Petitioner refused to agree to the prosecution's plea offer. He again requested to represent himself, and filed a brief in support of his motion to dismiss on April 28, 2015 (Doc. 1-2, pp. 1-5). He refused to meet with his appointed attorney, and refused to attend any further court dates (Doc. 1-2, p. 6, "Exhibit F"). He was tried in absentia on May 7, 2014, in Case No. 14-CF-407. The jury acquitted him of robbery, but found him guilty of attempted robbery (Doc. 1-2, p. 10).
Petitioner concludes that because he "did not partake or consent to any trial and/or proceedings here in Jackson County[, ]" this Court should order respondent Schwartz to dismiss all charges, immediately release him from custody, and return his bond money (Doc. 1, p. 6).
Initially, the Court observes that petitioner has named the wrong respondent in this action. The correct respondent in a habeas corpus proceeding is the person who has immediate custody over the petitioner; that is, his jailer or warden. 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). While this flaw alone would be ...