Hollie v. Rios
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 6/20/13. IT IS THEREFORE ORDERED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 1 is DISMISSED WITHOUT PREJUDICE. CASE TERMINATED. SEE WRITTEN ORDER & OPINION.(AEM, ilcd)
E-FILED
Thursday, 20 June, 2013 02:52:12 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
PERRY DANIEL HOLLIE, JR.,
Petitioner,
v.
RICARDO RIOS, Warden
Respondent.
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Case No. 13-cv-1077
ORDER & OPINION
This matter is before the Court on Petitioner’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), filed on February 20, 2013. As the
Court has received Petitioner’s filing fee, his Petition is now ready for preliminary
review. For the reasons stated below, the Petition is dismissed without prejudice.
Petitioner was convicted in the Eastern District of Michigan of conspiracy,
bank robbery, and murder in case number 96-cr-90058, and sentenced to life in
prison. (Doc. 1 at 2-3). He is currently incarcerated at the Pekin Federal
Correctional Institution. He apparently seeks a Court order as to a First
Amendment issue related to the viewing of certain R– or NC-17–rated movies in his
correctional facility. (Doc. 1 at 7-18).
The Court, in its discretion, applies the Rules Governing Section 2254 Cases
in the United States District Courts to this case. See Rules Governing Section 2254
Cases in the United States District Courts, R 1(b).1 This includes Rule 4, which
See also Poe v. United States, 468 F.3d 473, 477 n.6 (7th Cir. 2006); Hudson v.
Helman, 948 F. Supp. 810, 811 (C.D. Ill. 1996) (holding Rule 4 takes precedence
over 28 U.S.C. § 2243’s deadlines and gives court discretion to set deadlines).
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requires that the Court “promptly examine” the Petition, and dismiss it if it “plainly
appears . . . that the petitioner is not entitled to relief.” Pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts, the Court
has examined the Petition and determined Petitioner is not entitled to habeas
corpus relief.
Habeas corpus is an action for prisoners to challenge the fact or duration of
confinement, not the conditions of confinement. DeWalt v. Carter, 224 F.3d 607, 617
(7th Cir. 2000). The Seventh Circuit has repeatedly held that inmates challenging
prison conditions cannot receive habeas corpus relief, stating recently: “When there
isn’t even an indirect effect on duration of punishment . . . we’ll adhere to our longstanding view that habeas corpus is not a permissible route for challenging prison
conditions.” Robinson v. Sherrod, 631 F.3d 839, 840-41 (7th Cir. 2011). Petitioner’s
claim is solely a challenge to the conditions of his confinement, and is thus not
cognizable under § 2241. Rather, if Petitioner wishes to raise his claim in federal
court, it may be cognizable as a civil rights action under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Because
recharacterization of a habeas petition as a civil rights suit can have implications
that disadvantage the prisoner, the Court will not recharacterize Petitioner’s
claims. See Robinson, 631 F.3d at 841. Additionally, the filing fee for a civil rights
case is significantly higher than the five dollar fee for a habeas petition. Instead,
the Court dismisses Petitioner’s Petition without prejudice. Petitioner is free to file
a civil rights claim raising these grounds, if he wishes.2
However, Petitioner is warned that his suit may be without merit, and may even
be frivolous, which could result in restrictions on future filings.
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IT IS THEREFORE ORDERED that Petitioner’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) is DISMISSED WITHOUT
PREJUDICE.
CASE TERMINATED.
Entered this 20th day of June, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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