United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
Diamond Barnes, an inmate of the Illinois Department of
Corrections (“IDOC”) currently incarcerated at
Lawrence Correctional Center, brings this habeas corpus
action pursuant to 28 U.S.C. § 2241. Barnes is
challenging the disposition of his grievance by the
Administrative Review Board in which he alleged his innocence
and requested immediate release from custody and the
modification of the “custodial contract” embodied
in the mittimus. (Doc. 1, pp. 1, 5). He asserts that while in
unlawful custody, he has suffered loss of liberty and loss of
income in the amount of eight hundred twenty thousand
dollars. Id. at p. 8.
matter is now before the Court for review of the Petition
pursuant to Rule 4 of the Federal Rules Governing § 2254
Cases in United States District Courts, which provides that
upon preliminary consideration by the district 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) gives this Court the authority
to apply the rules to other habeas corpus cases. After a
thorough review of the Petition and exhibits, this action
will be dismissed pursuant to Rules 4 and 1(b).
was convicted of first degree murder in October 2010 and
sentenced to serve 45 years in the Illinois Department of
Corrections. See Barnes v. Hutchinson, No.
16-cv-00798 (S.D. Ill. 2016) (Doc. 29 discussing Barnes's
case history). After filing numerous claims in state court
seeking relief from his conviction, he filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in
July 2016. Id. His Petition was dismissed with
prejudice as untimely under 28 U.S.C. § 2244(d)(1) and
the Court declined to issue a certificate of appealability.
Id. at Docs. 29 and 34.
then filed four separate appeals with the Seventh Circuit
Court of Appeals pertaining to the dismissal of his habeas
action, all of which have been dismissed. See Barnes v.
Lashbrook, No. 17-2326 (7th Cir. Nov. 16, 2017);
Barnes v. Lashbrook, No. 17-2370 (7th Cir. July 18,
2017); Barnes v. Lashbrook, No. 18-1014 (7th Cir.
Jan. 8, 2018); Barnes v. Lashbrook, No. 18-1700 (7th
Cir. Nov. 15, 2018). In 2018, he also filed what this Court
construed as a Petition for a Writ of Mandamus. In the
Petition, he asked the Court to compel another district court
judge and/or the Seventh Circuit Court of Appeals to find
that his previously dismissed Habeas Petition is timely
and/or to enjoin the same from dismissing the Petition.
Barnes v. Warden, No. 18-cv-02117 (S.D. Ill. 2018).
That Petition was dismissed for lack of jurisdiction.
Id. at Doc. 5.
February 8, 2019, Barnes filed a grievance at Menard
Correctional Center asserting that: (1) he did not
intentionally discharge the gun and cause the death for which
he was convicted; (2) the results of a gunshot residue
collection kit administered to Barnes were “negative,
not suitable for comparison, nor positive
identification”; and (3) IDOC violated various state
statutes by entering into a mittimus contract with the State
of Illinois to secure custody of him. (Doc. 1, pp. 23- 27).
The grievance was ultimately denied by the Administrative
Review Board on the basis the request was outside of
IDOC's jurisdiction. (Doc. 1, pp. 4, 22).
person who is held in custody based on some authority other
than a state court judgment, such as pre-conviction custody,
may utilize the general habeas corpus provision under 28
U.S.C. § 2241. However, a state prisoner seeking relief
from a state conviction must proceed under § 2254, which
“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, 481 (1994); see also Walker
v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000)
(“[T]he requirements of § 2254 must be met by all
state prisoners filing petitions for writs of habeas corpus
Petition is difficult to decipher because of incoherent
sentences and numerous citations to case law, federal and
state statutes, and state administrative law. That said, he
appears to raise the following points: (1) because he is
claiming actual innocence, he can bring his habeas petition
after the one year statute of limitations of §
2244(d)(1); (2) he has been in custody unlawfully for
voluntary acts that are not a crime under federal law; (3) in
light of new evidence―the Illinois State Police
laboratory report containing the results from the gunshot
residue collection kit, which was not presented at his
criminal trial―it is more likely than not that no
reasonable juror would have found him guilty of murder in the
first degree; and (4) because of the facts and evidence
presented in the administrative grievance, the State of
Illinois and IDOC are aware of his innocence and have been
unlawfully keeping him in custody in breach of the mittimus
contract and in violation of federal law. (See
generally Doc. 1).
has brought his Petition, which ultimately seeks relief from
his state criminal conviction, under 28 U.S.C. § 2241,
rather than § 2254. Therefore, his case will be
dismissed on that basis. In a section of his Petition
entitled “Ground for Relief, ” Barnes seems to
argue that he is not challenging the validity of his
conviction pursuant to a state court's judgment, but the
validity of the terms and conditions of the mittimus issued
April 8, 2011, and the denial of his grievance. (Doc. 1, pp.
7-9, 13-14). To support his argument, he cites to Jacobs
v. McCaughtry, 251 F.3d 596 (7th Cir. 2001), in which
the Seventh Circuit Court of Appeals affirmed that
individuals in state custody for “some other
reason” other than “pursuant to a judgment by a
state court” must seek habeas relief under § 2241
and not § 2254. Id. at 597 (quoting
Walker, 216 F.3d at 633).
claims unlawful custody because of the mittimus contract and
denial of his grievance, but these arguments are flawed.
First, the “mittimus is not the source of authority for
confining the petitioner[; it] is only an abstract of the
judgment.” U.S. ex rel. Jackson v. Ragen, 150
F.2d 190, 191 (7th Cir. 1945)(citations omitted). It is the
judgment that “is the authority for confining the
petitioner.” Id. Moreover, Barnes remains in
custody pursuant to a state judgment, not because the
Administrative Review Board denied his grievance seeking
immediate release. (See Doc. 1, p. 23).
Barnes previously attempted to seek permission from the
Seventh Circuit Court of Appeals in 2016 to file a petition
under § 2241. Barnes v. Lashbrook, No. 18-1014
(7th Cir. Jan. 8, 2018). The Seventh Circuit advised him that
because he was “challenging a state conviction, §
2241 relief is categorically unavailable to [him]: the
exclusive vehicle for challenging his conviction is §
2254 petition.” Id. (citing Walker,
216 F.3d at 633).
Court will not automatically re-characterize a § 2241
petition as being made pursuant to § 2254 because that
statute contains a strict limit on the number of § 2254
petitions an inmate may file. 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). If Barnes wishes to proceed with
his request for relief, he must do so by filing a Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
However, because Barnes previously brought a habeas petition
under § 2254 that was dismissed with prejudice
(Barnes v. Hutchinson, No. 16-cv-00798 (S.D. Ill.
2016)), he must obtain permission from the United States
Court of Appeals, Seventh Circuit, before he may bring a
second or successive § 2254 petition. 28 U.S.C. §
2244(b). Exhaustion of all ...