United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE
habeas corpus action, filed pursuant to 28 U.S.C. §
2241, Petitioner brings a collateral attack on his 2015 Cook
County conviction for residential burglary for which he is
presently serving a 14 year sentence (No. 13-cr-1326701).
Petitioner argues that he was wrongfully convicted of
residential burglary because he had legal authority to enter
the subject residence. He further argues (1) he was denied
effective assistance of counsel; (2) his due process rights
were violated; and (3) his Fourth Amendment rights were
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
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).
Petitioner suggests that he presently has an appeal pending
in the Illinois Appellate Court for the First Judicial
District (No. 15-cv-3356). Therefore, it appears that
Petitioner has not met the exhaustion requirements of §
the Court notes that although Petitioner is presently
confined in the Southern District of Illinois, he was
convicted in Cook County, which is situated in the federal
judicial district for the Northern District of Illinois. 28
U.S.C. § 93(a)(1). Therefore, the Northern District of
Illinois is likely the more convenient forum for the hearing
and determination of a habeas corpus action pertaining to the
subject conviction, particularly because the records of
Petitioner's conviction may be found there, as may most
of the participants in his trial.
Petitioner is challenging his custody pursuant to a final
judgment of a state court, Section 2241 is unavailable to
him. If he wishes to proceed with his request for relief,
Petitioner must do so by filing a Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254, and only after
exhausting all available state court remedies. It is also
likely that the most appropriate forum for such a case would
be the Northern District of Illinois.
reasons stated above, the instant habeas petition is
DISMISSED without prejudice.
petitioner wishes to appeal this dismissal, he may file a
notice of appeal with this Court within thirty days of the
entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal. See Fed. R.
App. P. 24(a)(1)(C). If Petitioner does choose to appeal and
is allowed to proceed IFP, he will be required to pay a
portion of the $505.00 appellate filing fee in order to
pursue his appeal (the amount to be determined based on his
prison trust fund account records for the past six months)
irrespective of the outcome of the appeal. See Fed.
R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v.
Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008);
Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir.
1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th
Cir. 1998). A timely motion filed pursuant to Federal Rule of
Civil Procedure 59(e) may toll the 30-day appeal deadline. It
is not necessary for Petitioner to obtain a certificate of
appealability. I, 216 F.3d 626, 638 (7th Cir. 2000).
Clerk is DIRECTED to close this case and
enter judgment accordingly.