United States District Court, S.D. Illinois
STEVEN L. COOPER, Petitioner,
MEMORANDUM AND ORDER
R. Herndon, Judge
currently incarcerated in Taylorville Correctional Center,
brings this habeas corpus action pursuant to 28 U.S.C. §
2241 to challenge the constitutionality of his state court
sentence for aggravated battery after violating his
probation. The underlying Petition was filed on December 20,
2016. Petitioner challenges his sentence because he alleges
that the judge sentenced him for violating a probation that
was not currently in effect.
alleges that on January 4, 2013, Judge Griffith of the Macon
County Court sentenced him to a term of incarceration for
violating probation, despite the fact that the probation had
been terminated. (Doc. 1, p. 4). He alleges that as a result,
he was sentenced to a Class 2 felony when he should have been
sentenced to a Class 4 felony for a domestic with a prior.
response to the question regarding whether he had appealed
the state court decision, Petitioner checked ‘yes,
' and listed a § 1983 case he brought in this court
regarding the same issues.
of the Rules Governing § 2254 Cases in United States
District Courts 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.” Rule 1(b) of those Rules gives
this Court the authority to apply the rules to other habeas
corpus cases. After carefully reviewing the Petition in the
present case, the Court concludes that Petitioner is not
entitled to relief, and the Petition must be dismissed.
has invoked the wrong statute and his case will be dismissed
on these grounds. The correct vehicle for a state prisoner
seeking relief from a state court conviction is § 2254,
not § 2241. Walker v. O'Brien, 216 F.3d
626, 633 (7th Cir. 2000); see also Heck v. Humphrey,
512 U.S. 477, 481 (1994) (holding a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 “is the
exclusive remedy for a state prisoner who challenges the fact
or duration of his confinement and seeks immediate or
speedier release.”). The Court will not automatically
recharacterize the Petition as being made pursuant to §
2254 because that statute contains a strict limit on the
number of § 2254 petitions an inmate may file; and,
recharacterizing the Petition may make it significantly more
difficult for a litigant to file another such motion raising
such issues. See Castro v. United States, 540 U.S.
375, 382-83 (2003).
also clear that Petitioner has not met the requirements of
§ 2254. Before a habeas action may be heard in federal
court, a petitioner is required to exhaust his available
remedies in state court, or else show cause and prejudice for
the failure to exhaust. 28 U.S.C. § 2254(b)(1);
McAtee v. Cowan, 250 F.3d 506, 508-09 (7th Cir.
2001). To exhaust his remedies, a state prisoner must fairly
present his claim in each appropriate state court including a
state supreme court with powers of discretionary review.
Byers v. Basinger, 610 F.3d 980, 985 (7th Cir.
2010); Baldwin v. Reese, 541 U.S. 27, 29 (2004);
see also O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (holding that state prisoners “must give the
state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process”);
Spreitzer v. Schomig, 219 F.3d 639, 644-45 (7th Cir.
2000). A prisoner need not pursue all separate state remedies
that are available to him but must give “the state
courts one fair opportunity to pass upon and correct the
alleged violations.” McAtee, 250 F.3d at 509.
Further, “[i]f a prisoner fails to present his claims
in a petition for discretionary review to a state court of
last resort, those claims are procedurally defaulted.”
Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir.
1999); see also O'Sullivan, 526 U.S. at 848.
has affirmatively stated that he has not exhausted his state
court remedies. In the section of his habeas petition that
asks if Petitioner appealed his state court sentence, he
checked yes, but then pointed to another suit in this Court
raising claims pursuant to § 1983, No. 16-916. A federal
suit for money damages does not exhaust Petitioner's
state court remedies. It does not count as an appeal of a
state court's decision. In fact, Petitioner could not
recover any money under § 1983 unless the conviction he
complains of is first set aside through a direct appeal or
post-conviction relief. If Petitioner wishes to bring a
habeas claim in this Court, he must first appeal his sentence
to the Illinois Appellate Court and the Illinois Supreme
Court. Failure to do so will always result in dismissal of
his habeas action.
Court will dismiss this case as improperly filed,
Petitioner's Motion for Recruitment of Counsel is MOOT.
has also filed a Motion, which the Court construed as a
Motion to Voluntarily Dismiss, in which Petitioner takes
issue with the assessment of a filing fee in this case. (Doc.
4). Petitioner alleges that he already paid a filing fee in
Case No. 16-916, and that he should not be assessed a filing
fee in this case, particularly where the Court “ask[ed]
me to fill out the papers again.” (Doc. 4). The Court
DENIES Petitioner's Motion to voluntarily dismiss because
it finds his assertion that he should not have paid two
filing fees is based on a mistaken understanding of federal
civil procedure, and not on a genuine desire to withdraw this
case. (Doc. 4). It is also not clear based on
Petitioner's filing that he was actually asking to
withdraw this suit. Additionally, a motion for voluntary
dismissal does not obligate a court to return the filing fee
assessed because the obligation to pay the fee accrues at the
time the action is filed. See 28 U.S.C. §
1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998).
Petitioner has filed a document entitled “Request for
Relief, ” which the Court has construed as a Motion to
Amend. (Doc. 5). In that document, Petitioner requests
immediate release for the violation of his civil rights,
including due process and double jeopardy, and $50, 000.
(Doc. 5). The Court does not permit piecemeal amendments;
rather a party must submit an entire amended pleading at the
time the amendment is proposed. SDLR 15.1. In any event,
Petitioner's request would be moot because his Petition
already requests both $50, 000 and release from custody.
(Doc. 1, p. 9). Finally, as explained to Petitioner
repeatedly in case No. 16-916, he cannot ask the Court for
both money and release from custody in the same lawsuit. He
must ask for money in a suit filed pursuant to § 1983.
Any requests for release belong in a habeas corpus action
pursuant to § 2254. Petitioner's request to amend
the Petition is DENIED. (Doc. 5).