White v. Warden, United States Penitentiary, Marion

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Petitioner is ORDERED to either pay the full filing fee of $5.00 for this action or file a motion and affidavit for leave to proceed in forma pauperis (IFP), no later than April 1 8, 2013. Should petitioner fail to comply, this action shall be subject to dismissal. IT IS HEREBY ORDERED that respondent shall answer or otherwise plead within thirty days of the date this order is entered. (Action due by 4/18/2013). Signed by Chief Judge David R. Herndon on 4/2/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAWN WHITE, # 35418-044,
Petitioner,
vs.
WARDEN, UNITED STATES
PENITENTIARY-MARION,
Respondent.

Case No. 13-cv-241-DRH

MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
This matter is before the Court for preliminary review of petitioner Shawn
White’s motion for “relief pursuant to F.R. Civ. P. Rule 60(b)(6), 28 U.S.C. § 1651,
42 U.S.C. § 2000a-6, and 42 U.S.C. § 2000dd” (Doc. 1). In his motion, petitioner
challenges the computation of his sentence by the Bureau of Prisons. Petitioner
originally filed the motion in his criminal case in the Eastern District of Missouri
(Case No. 09-cr-192-CDP) on February 25, 2013. Upon review, that district court
construed the motion as a petition for writ of habeas corpus under 28 U.S.C.
§ 2241, and opened a civil case (Case No. 13-cv-441-CDP) in order to address
petitioner’s claims (Doc. 2). On March 8, 2013, the Eastern District of Missouri
transferred the action to this Court, because petitioner is confined at the United
States Penitentiary in Marion, within the Southern District of Illinois (Doc. 3).
According to his pleading, the Bureau of Prisons has informed petitioner
that he must serve a total of 113 months. However, he was sentenced to only 100
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months in United States v. White, E.D. Missouri Case No. 09-cr-192-CDP, and
the court ordered that sentence to be served concurrently to a 51 month sentence
imposed in a previous criminal case, United States v. White, E.D. Missouri Case
No. 08-cr-369-CEJ. Further, petitioner asserts that he had been in custody for 13
months prior to the disposition of his second case, and was not properly given
credit for that time served. He seeks an order crediting him for the 13 months of
detention prior to sentencing, such that his total time in prison will be 100
months.
Filing Fee
When this matter was docketed as a civil case in the Eastern District of
Missouri, it appears that no filing fee was assessed. In a federal habeas corpus
action, the filing fee is $5.00.

28 U.S.C. § 1914(a).

Therefore, petitioner is

ORDERED to either pay the full filing fee of $5.00 for this action or file a motion
and affidavit for leave to proceed in forma pauperis (IFP), no later than April 18,
2013. Should petitioner fail to comply, this action shall be subject to dismissal.
The Clerk is DIRECTED to mail petitioner a blank form motion for leave to
proceed IFP.
Respondent
Petitioner has named the United States of America as the respondent in this
action, an understandable designation given that he originally filed the instant
pleading in his criminal case.

However, in a habeas corpus proceeding, the

proper respondent is the prisoner’s custodian; in other words, the warden of the

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prison where the inmate is confined. See 28 U.S.C. § 2242 (an application for a
writ of habeas corpus shall name the person who has custody over the applicant);
Rumsfeld v. Padilla, 542 U.S. 426, 442, 447 (2004); Kholyavskiy v. Achim, 443
F.3d 946, 948-49 (7th Cir. 2006); Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir.
1996).
Accordingly, the Clerk is DIRECTED to terminate the United States of
America as the respondent in this action, and add the Warden, United States
Penitentiary-Marion as the respondent. See FED. R. CIV. P. 21; FED. R. CIV. P.
17(d).
In any future documents filed in this case, petitioner shall identify the
Warden by his proper name.
Disposition
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
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.
Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas
corpus cases.

1

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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
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
the respondent) 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).

Digitally signed
by David R.
Herndon
Date: 2013.04.02
16:12:36 -05'00'

IT IS SO ORDERED.
Signed this 2nd day of April, 2013.

Chief Judge
United States District Court

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