United States District Court, C.D. Illinois
ORDER & OPINION
BILLY McDADE, UNITED STATES SENIOR DISTRICT JUDGE.
has filed a Petition for a Writ of Habeas Corpus (Doc. 1),
purportedly under 28 U.S.C. § 2241, and a Motion for
Leave to Proceed in forma pauperis (Doc. 2), among
other motions (see Docs. 4-5). The Court is required
to perform a merit review under 28 U.S.C. § 1915(e)(2)
when a Petitioner requests to proceed in forma
pauperis. United States v. Durham, 922 F.3d
845, 846 (7th Cir. 2019). Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts also
requires a prompt merit review. For the reasons stated below, the
Court denies Petitioner’s Petition without prejudice,
denies as moot Petitioner’s other motions, also without
prejudice, and grants Attorney Greggory Walters’s
Motion to Withdraw as Counsel (Doc. 6).
Johnnie Sims was convicted by a jury of unlawful possession
of a weapon by a felon in violation of 720 ILCS 5/24-1.1(a).
(Doc. 1-1 at 9).. Petitioner appealed his conviction to the
Third District of the Illinois Appellate Court, challenging
the sufficiency of the evidence and arguing evidence was
erroneously admitted and there was misconduct by prosecutors.
(Doc. 1 at 2). The Third District affirmed (Doc. 1 at 2);
Petitioner then appealed to the Illinois Supreme Court on
September 5, 2019 (Doc. 1 at 3). That appeal remains pending.
(Doc. 1 at 3). Additionally, Petitioner filed a petition
under 735 ILCS 5/2-1401 asserting prosecutorial misconduct in
several forms, which also remains pending. (Doc. 1 at 6, 8).
Petitioner submitted the instant Petition on September 16,
2019 (Doc. 1 at 9). He asserts ineffective assistance of both
his appellate and trial counsel with regard to evidentiary
issues and witness questioning issues as well as a claim that
the State presented improper jury instructions and tampered
initial matter, the Court notes Petitioner is currently
proceeding pro se. Courts “construe pro se
complaints liberally and hold them to a less stringent
standard than formal pleadings drafted by lawyers.”
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
of the Rules Governing Section 2254 Cases in the United
States District Courts requires this Court to “promptly
examine” habeas corpus petitions and “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief . . . dismiss
the petition.” “This rule provides district
courts the power to dismiss . . . petitions that do not state
a claim upon which relief can be granted.”
Szemborski v. Endicott, No. 97-3386, 1999 WL 220110,
at *1 (7th Cir. Apr. 9, 1999).
commencement and proceeding of a lawsuit without the
prepayment of fees may be authorized by Courts upon the
submission of an affidavit indicating “the person is
unable to pay such fees or give security therefor.” 28
U.S.C. § 1915(a)(1). “In cases governed only by
section 1915, the district court is required to screen the
case before granting the privilege to proceed without
prepayment of fees.” United States v. Durham,
922 F.3d 845, 846 (7th Cir. 2019). Such a case must be
dismissed if it “(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Courts “apply the same standard used for evaluating
dismissals under Rule 12(b)(6) of the Federal Rules of Civil
Procedure” to review under 28 U.S.C. §
1915(e)(2)(B)(ii). Arnett, 658 F.3d at 751 (7th Cir. 2011).
primary problem is the section under which he purports to
file. “[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 . . . .’ ”
Barnes v. Baldwin, No. 19-cv-635, 2019 WL 3975176,
at *2 (S.D. Ill. Aug. 22, 2019) (quoting Heck v.
Humphrey, 512 U.S. 477, 481 (1994); and citing
Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir.
2000)). Petitioner-although in custody pursuant to a state
conviction-has attempted to utilize 28 U.S.C. § 2241.
courts recharacterize petitions under these circumstances to
allow consideration. Because a petition under § 2254 may
have an effect on a person’s ability to file subsequent
§ 2254 petitions, district courts generally “warn
a habeas petitioner of the court’s decision to
recharacterize a petition, and give the petitioner a chance
to withdraw it or amend it to include all potential
claims.” al Ghashiyah v. Boughton, No.
15-cv-514, 2016 WL 7116197, at *2 (W.D. Wis. Dec. 6, 2016)
(citing Castro v. United States, 540 U.S. 375, 383
(2003); Simpson v. Pollard, No. 15-1319, slip op. at
2 (7th Cir. June 22, 2015)). Other times, courts simply
dismiss the case without prejudice, thereby allowing the
Petitioner to refile his or her claim as the proper type of
petition and in the proper forum. See Cantu v.
Rains, No. 18-cv-1139, 2018 WL 3009294, at * 1–*2
(S.D. Ill. June 15, 2018).
Court opts to do the latter here for reasons similar to those
stated in Cantu. As in that case, it appears
Petitioner has not met § 2254’s exhaustion
requirements. “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.” Id. at
*1 n.1 (citations omitted). Petitioner’s direct appeal
remains pending before the Illinois Supreme Court, and he
also has a postconviction petition pending. In light of this,
the Court believes judicial economy and Petitioner’s
time and energy are better served if this case is dismissed
without prejudice. Should he wish to further pursue relief,
Petitioner would need to file a petition under § 2254,
but he is reminded of the exhaustion requirement.
Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2241 (Doc. 1) is DENIED WITHOUT PREJUDICE because the relief
he seeks cannot be provided under that section.
Petitioner’s motions in this case (Docs. 2, 4, and 5)
are DENIED AS MOOT. Attorney Greggory Walters’s Motion