Wyre v. Cross

Filing 4

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. IT IS HEREBY ORDERED that Respondent shall answer or otherwise plead on or before July 24, 2013. Signed by Chief Judge David R. Herndon on 6/28/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JULIAN WYRE, #30166-424,
Petitioner,
vs.

Case No. 13-cv-538-DRH

WARDEN CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner, who is currently incarcerated in the Federal Correctional
Institution at Greenville, Illinois (“Greenville”), brings this habeas corpus action
pursuant to 28 U.S.C. § 2241 to challenge the execution of his sentence.
Specifically, Petitioner disputes the denial of his transfer request under 18 U.S.C.
§ 3621(b). This matter is now before the Court for review of the petition pursuant
to Rule 4 of the Rules Governing § 2254 Cases in United States District Courts,
which provides that upon preliminary consideration by the district court 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) of those Rules
gives this Court the authority to apply the rules to other habeas corpus cases.
Petitioner pled guilty to one violation of 21 U.S.C. § 841(a)(1) for
possession with intent to distribute approximately 6.9 grams of cocaine base, a
Schedule II Narcotic Drug Controlled Substance.
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United States v. Wyre, Case

No. 07-cr-50039-1 (N.D. Ill., Doc. 39). He was sentenced to a term of seventeen
years of imprisonment on November 6, 2008 (Id., Doc. 49).

Petitioner has a

projected release date of 2022 (Doc. 1-1, p. 2).
On January 8, 2013, Petitioner approached his case manager and
requested a transfer to the Chicago Residential Reentry Center (Doc. 1-1, p. 2).
The case manager dismissed Petitioner’s transfer request outright after learning
that Petitioner’s release date was not set to occur until 2022. He conducted no
further analysis of Petitioner’s request.
Petitioner now asserts that his transfer request was not properly
considered under 18 U.S.C. §§ 3621(b) and 3624(c) (Doc. 1, p. 2).

Petitioner

alleges that his request was denied without an individualized assessment of all
five factors set forth in 18 U.S.C. § 3621(b) and after misapplication of 18 U.S.C.
§ 3624(c).

Petitioner was not seeking pre-release placement pursuant to 18

U.S.C. § 3624(c) (Doc. 1-1, p. 1). Rather, Petitioner sought a transfer from one
institution to another under 18 U.S.C. § 3621(b). Petitioner now claims that the
failure to properly apply 18 U.S.C. §§ 3621(b) and 3624(c) resulted in a violation
of his due process rights (Doc. 1, p. 8).

As relief, Petitioner seeks an order

requiring Respondent to transfer him to the Chicago Residential Reentry Center.
Petitioner describes his efforts to exhaust his administrative remedies prior
to bringing a habeas action (Doc. 1, pp. 20, 22). See Sanchez v. Miller, 792 F.2d
694, 697 (7th Cir. 1986) (federal prisoners must first exhaust administrative
remedies prior to bringing a petition for a writ of habeas corpus in federal court).

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He filed an informal request for an administrative remedy (BP-8) with his
correctional counselor on January 8, 2013, a formal request for an administrative
remedy (BP-9) with the warden on January 8, 2013, a regional administrative
remedy appeal (BP-10) with the regional office on January 22, 2013, and an
appeal to the general counsel (Form BP-11) on March 20, 2013 (Doc. 1-1, p. 1).
The general counsel failed to issue a timely response to Petitioner’s BP-11.
Disposition
Without commenting on the merits of Petitioner’s claim, 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 on or before July 24, 2013. 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
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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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
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).
IT IS SO ORDERED.

David R.
Herndon
2013.06.28
16:12:20 -05'00'

Signed this 28th day of June, 2013.

Chief Judge
United States District Court

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