Perry v. Walton

Filing 5

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge David R. Herndon on 1/10/2013. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN SCOTT PERRY,
Inmate No. 09620-062,
Petitioner,
vs.
JEFFREY S. WALTON,
Respondent.

No. 13-cv-00009-DRH
MEMORANDUM AND ORDER

HERNDON, Chief District Judge:
Petitioner Brian Scott Perry, currently incarcerated at USP-Marion
(“Marion”), brings this habeas corpus action pursuant to 28 U.S.C. § 2241 (Doc.
1).

Petitioner states he is serving a 150 month sentence arising from his

convictions for possession of a firearm after prior conviction of felony, possession
with intent to distribute methamphetamine, and possession of a firearm in
furtherance of a drug-trafficking crime. Petitioner alleges law enforcement officers
who testified at his trial have since been charged with police corruption. He states
this “new information” demonstrates his actual innocence. Without commenting
on the merits of petitioner’s claims, the Court concludes that the petition survives
preliminary review under Rule 4 and Rule 1(b) of the Rules Governing Section
2254 Cases in United States District Courts.1

1

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas
corpus cases.
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Filing Fee – Pending Motions
Petitioner filed a motion for leave to proceed in forma pauperis (“IFP”) in
this action on January 4, 2013 (Doc. 2), seeking waiver of the $5.00 filing fee for
this action. The Clerk has requested an inmate account statement from the trust
fund officer at Marion (Doc. 4), and the undersigned Judge shall rule on
petitioner’s motions after the receipt of this information.
A response shall be ordered so that this matter may proceed in a timely
fashion.

However, if petitioner is ultimately ordered to pay the filing fee, this

action shall be subject to dismissal if he does not comply with a payment order.
See FED. R. CIV. P. 41(b).
Disposition
IT IS HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this order is entered. This preliminary order
to respond does not, of course, preclude the government from raising any
objection or defense it may wish to present.

Service upon the United States

Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to a United States Magistrate Judge for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
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72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven (7) days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
41(b).
IT IS SO ORDERED.
Signed this 10th day of January, 2013.

David R.
Herndon
2013.01.10
18:23:22 -06'00'

Chief Judge
United States District Court

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