United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. HERNDON UNITED STATES DISTRICT JUDGE.
currently incarcerated in Vandalia Correctional Center,
brings this habeas corpus action pursuant to 28 U.S.C. §
2241 to challenge the constitutionality of the Illinois
Department of Corrections' (IDOC) calculation of his
out-date, and his underlying conviction for violating a
protective order. The petition was filed on February 7, 2017.
argues that trial transcripts are being withheld from him.
(Doc. 1, p. 6). He further argues that Judge T.S. McCann of
Kendall County sentenced him to 1 term of 4 years' parole
at the end of his last consecutive charge. Id. While
serving a sentence on 3 consecutive charges, petitioner
caught another charge while trying to contact his son, who
has an order of protection against him. (Doc. 1, pp. 6-7).
Petitioner argues that his outdate is being miscalculated as
a result of the interplay between the 2012 charges and the
2014 charge. (Doc. 1, p. 6). He also alleges that he should
not have been charged with violating a protective order
because two separate counties issued them and petitioner
believes that the two orders of protection cannot run
together. (Doc. 1, p. 7). Petitioner's third argument is
that IDOC should have allowed him to take classes to earn
sentence credits. Id. Finally, petitioner argues
that IDOC's policy of requiring him to have a home site
prior to being released is effectively punishing him for
being homeless. Id.
alleges that he filed a grievance regarding the calculation
of his outdate, although it is not clear how far he pursued
that process or what the outcome was. (Doc. 1, p. 2).
Petitioner states, “I have many IDOC employees bumping
heads on this, ” which implies that the issue has not
been resolved. Id. Petitioner also states that as to
the underlying conviction, he has an appeal pending in the
appellate court for the Second District of Illinois. (Doc. 1,
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
re-characterize 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
re-characterizing the petition may make it significantly more
difficult for a litigant to file another motion. 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 as to the underlying conviction. He has stated
that the matter is still pending in the appellate court and
that he has not presented it to the state supreme court. It
is unclear as to whether he has exhausted his remedies as to
the calculation of his outdate; the proper course is to file
a petition for mandamus in state court, and the petition
implies that the only step petitioner has taken so far is to
file a grievance to the IDOC. Toney v. Franzen, 687
F.2d 1016, 1021-22 (7th Cir. 1982) (“Under Illinois
law, mandamus is clearly the appropriate procedure to compel
the Department of Corrections to set petitioner's
mandatory release date in accordance with law.”).
Notably, exhaustion in a habeas case requires presentation to
the state courts, not the relevant state agency. It also
appears petitioner's claims regarding his underlying
conviction and the calculation of his outdate may be
intertwined, as petitioner has implied that he caught another
charge while still incarcerated, which may have impacted the
amount of parole or supervised release that he had to serve,
although it is not clear form the petition that this is
necessarily the case. Petitioner is strongly cautioned to
make sure that he completes his state court remedies prior to
bringing an action in federal court as to all issues he
wishes to raise.
motion to proceed IFP will be addressed by separate order.
Court also notes that petitioner filed 1 exhibit on February
9, 2017, a second on February 28, 2017, and a third on March
2, 2017. (Doc. 3) (Doc. 4) (Doc. 8). All 3 exhibits appear to
address incidents of prison discipline that have no bearing
on this case. The Court did not consider them as part of this
screening. If petitioner wishes to bring claims based on his
conditions of confinement or due process violations, he must
file suit under § 1983; he cannot bring such claims in a
reasons stated above, the instant habeas petition is
DISMISSED without prejudice to any other habeas petition or
civil rights action petitioner wishes to file. If necessary,
petitioner may re-file his claims raised herein after his
state court remedies are fully exhausted, so long as he does
so within the applicable time limits. See 28 U.S.C.