United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon, Judge United States District Judge
Howard Wilson is currently incarcerated at the Menard
Correctional Center in Menard, Illinois. (Doc. 1 at 1.)
Proceeding pro se, Wilson has filed what the Clerk
of Court has dubbed a federal petition for a writ of habeas
corpus, but what was really labeled by Wilson as a
“Section 2-1401 Motion.” (Id.) Based on
the allegations raised in Wilson's filing, Wilson seems
to be attacking his underlying state conviction under
Illinois Code of Civil Procedure § 2-1401, which
“provides a means by which” an Illinois trial
court “can vacate or modify a final order or judgment
in a civil or criminal proceeding.” People v.
Mitros, - N.E.3d -, 2016 WL 6664643, at *3 (Ill.App.Ct.
Nov. 10, 2016). While Wilson's submission to this Court
is extremely difficult to parse out, he seems to argue that
his 1993 state convictions for murder must be overturned for
at least five reasons. Wilson says that his state felony
murder convictions are improper because they were predicated
on an armed robbery that occurred outside of the limitations
period for a robbery charge; because his convictions were
based on a statute enacted after his crimes were committed;
because the trial judge was biased against him; because the
prosecutor misled the grand jury in the process of obtaining
an indictment; because the prosecutor did not prove every
element of felony murder; because the prosecutor did not
honor a plea agreement; and because the prosecutor introduced
false evidence to the grand jury.
has filed his § 2-1401 motion in federal court, but
§ 2-1401 is a state provision that requires that the
motion be filed “in the same proceeding in which the
order or judgment was entered, ” People v.
Chatman, - N.E.3d -, 2016 WL 5687510, at *3 (Ill.App.Ct.
Sept. 30, 2016), a provision that directs defendants like
Wilson to Illinois state court. To be sure, federal courts
like this one are only authorized to hear a challenge to a
state conviction if it is premised on 28 U.S.C. §
2254-that federal statute is the “exclusive remedy for
a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release.”
Heck v. Humphrey, 512 U.S. 477, 480 (1994). Section
2254 provides federal courts with the authority to order
relief for a state prisoner if he is in custody in violation
of the United States Constitution or laws or treaties of the
United States, but there are a number of conditions built
into the statute: a state prisoner must typically raise all
of his errors in state court before seeking relief from a
federal judge, see 28 U.S.C. § 2254(b); a
prisoner must file his § 2254 petition within a certain
time period, see 28 U.S.C. § 2244(d); and a
prisoner generally only gets one opportunity to bring a
§ 2254 petition without leave from a federal appellate
court-leave that is severely circumscribed by statute,
see 28 U.S.C. § 2244(b).
these pitfalls, it is usually frowned on for a district court
to recharacterize a conviction-related pleading from one type
of filing to a § 2254 habeas petition. See Glaus v.
Anderson, 408 F.3d 382, 388 (7th Cir. 2005). For that
reason, Wilson's instant motion, which is premised
exclusively on an Illinois provision and not § 2254,
must be rejected. However, the Court will give Wilson an
opportunity to submit an amended petition in this case
pursuant to 28 U.S.C. § 2254 if he wishes to do so.
See Id. at 388-89. Alternatively, Wilson can file a
notice with the Court advising that he does not wish to
pursue a § 2254 federal habeas petition at this time,
presumably because he wants to proceed with his motion in
Illinois state court instead.
Wilson decides to press forward with a § 2254 federal
petition in this Court, he should keep a few points in mind.
First, he is strongly encouraged to use the Court's form
for § 2254 petitions, as that will provide a structured
method for him to set forth his claims for federal
constitutional relief. Second, Wilson must name the Warden of
his current prison as the respondent in any amended
petition-the “People of the State of Illinois” is
not an appropriate party. See Hogan v. Hanks, 97
F.3d 189, 190 (7th Cir. 1996). Third, given that Wilson has
filed the instant motion as one under Illinois law, it is an
open question whether he has submitted all of the points of
error in his motion to the Illinois state courts for
resolution. A state prisoner must typically exhaust all of
his remedies in state court before bringing a claim to
federal court or demonstrate that those state remedies are no
longer available. See Gacho v. Butler, 792 F.3d 732,
735 (7th Cir. 2015). Finally, a prisoner can only file one
§ 2254 petition of his own accord; subsequent habeas
petitions require leave of the designated federal circuit
court of appeals-here the Seventh Circuit. See Altman v.
Benik, 337 F.3d 764, 766 (7th Cir. 2003). For that
reason, a prisoner should bring every claim of error that he
wishes to raise in his initial petition, and not try to raise
claims at a later point through successive petitions.
conclusion, Wilson's current § 2-1401 state motion
is DISMISSED without prejudice, as the motion is not one
styled under 28 U.S.C. § 2254. If Wilson wishes to
proceed with a federal habeas petition, he must file a
revised petition seeking relief under § 2254 within 28
days of the date of this order (on or before January 3,
2017). That petition should clearly and concisely lay out any
claims of error Wilson wishes to raise in this Court. Wilson
is ADVISED that the Court will not accept piecemeal
amendments to the original petition. Thus, the amended
petition must stand on its own, without reference to any
other pleading, and Wilson must refile any materials he
wishes the Court to consider along with the amended petition.
In order to assist Wilson, the CLERK is DIRECTED to mail
Wilson a blank § 2254 petition form.
Wilson does not wish to proceed with a § 2254 petition,
he is DIRECTED to file a short notice with the Court
indicating that he wishes to dismiss this action without
prejudice. If Wilson takes no action within the next 28 days,