United States District Court, S.D. Illinois
SCOTT J. NJOS, BOP No. 30162-424, IDOC No. R-21668, Petitioner,
ILLINOIS DEPT. of CORRECTIONS, Respondent.
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
is a federal prisoner currently incarcerated in the Florence
ADMAX USP (“Florence”) in Colorado. He has
brought this habeas corpus action pursuant to 28 U.S.C.
§ 2241 to challenge an outstanding detainer placed on
him by the Illinois Department of Corrections
(“IDOC”) for an alleged parole violation.
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.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus
cases, such as this action under 28 U.S.C. § 2241. After
carefully reviewing the Petition, the Court concludes that
Petitioner is not entitled to relief, and the Petition must
be dismissed without prejudice.
served a state sentence and was released on April 13, 2007,
from Graham Correctional Center (which is located within the
Southern District of Illinois), to serve a 3-year parole
term. (Doc. 1, p. 1). On June 15, 2007, Petitioner was taken
into federal custody, and he has remained a federal prisoner
since that date.
March 4, 2009, the IDOC placed a “custody
detainer” on Petitioner for a parole violation related
to his state sentence. (Doc. 1, pp. 1, 3, 5). At the time the
detainer was issued, Petitioner had been in federal custody
for over 20 months. According to Petitioner, his
“maximum custody date” if he had been returned to
state custody would have been October 14, 2010. He claims
that his Illinois court case has long since been closed, and
thus the detainer should have expired with the closing of the
state case. He attaches documentation from the Circuit Court
in Winnebago County showing that there is no arrest warrant
for him from that jurisdiction. (Doc. 1, p. 4).
states that the IDOC refuses to lift the
“illegal” custody detainer, despite the fact that
the underlying state court case has been closed. He seeks an
order from this Court compelling the IDOC to lift the
detainer, cancel its warrant, and inform federal officials at
Florence that the detainer has been lifted. (Doc. 1, p. 2).
a habeas action relating to a state-ordered imprisonment 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 petitioner 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.
is not currently in state custody, however, he seeks to
challenge an order that would place him into state custody in
the future once he is released from federal prison. As such,
he must bring his challenge to that future custody order in
the Illinois state courts before seeking relief in federal
instant habeas Petition does not reveal any attempt by
Petitioner to bring his claim in state court before he filed
this case. Further, Petitioner has not made any showing of
cause and prejudice for the failure to exhaust his state
court remedies on this matter. He must pursue relief in the
Illinois courts before he may maintain a habeas action in
federal court. Plaintiff may be able to compel the IDOC to
lift the custody detainer by filing an action under the
Illinois habeas corpus statute, 735 Ill. Comp. Stat. 5/10-101
et seq., or through filing a mandamus action.
See 735 Ill. Comp. Stat. 5/14-101 et seq.;
Turner-El v. West, 811 N.E.2d 728, 733 ( Ill. App.
2004) (citing Taylor v. Franzen, 417 N.E.2d 242,
247, aff'd on reh'g, 420 N.E.2d 1203 ( Ill.
Petitioner brings his challenge to the custody detainer in
state court and completes the state appellate review process,
his claim remains unexhausted, and a federal habeas corpus
action is premature. Accordingly, this action shall be
dismissed without prejudice.
reasons stated above, the instant habeas petition is
DISMISSED without prejudice. If necessary,
Petitioner may re-file the claim raised herein ...