Anderson v. Walton

Filing 5

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, IT IS HEREBY ORDERED that respondent shall answer the petition or otherwise plead within thirty days of the date this order is entered. The deadline for payment is August 14, 2013 (Doc. 4), and failure to pay will likely result in the dismissal of the petition. (Action due by 8/14/2013). Signed by Chief Judge David R. Herndon on 7/23/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EDWARD QUENTIN ANDERSON,
No. 28722-044,
Petitioner,
vs.
J.S.WALTON,
Respondent.

Case No. 13-cv-00643-DRH
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
Petitioner Edward Quentin Anderson is a federal inmate currently
incarcerated in the Federal Prison Camp at Marion, Illinois. In 2005, Edwards
pleaded guilty and was convicted of conspiracy to distribute cocaine and
phencyclidine, in violation of 21 U.S.C. § 841(a)(1), and other related offenses.
See United States of America v. Anderson, No. 03-cr-695-ERW (E.D.Mo. April
15, 2005). He was sentenced to imprisonment for 145 months. On July 3, 2013,
Anderson initiated this habeas corpus action pursuant to 28 U.S.C. § 2241,
collaterally attacking the execution of his sentence.
Anderson asserts that his Pre-Sentence Investigation Report is not being
accurately interpreted by the Bureau of Prisons (“BOP”), thereby preventing him
from participating in a recommended BOP Residential Drug Abuse Program. See
18 U.S.C. 3621(e)(5)(B) (criteria for participation in a BOP residential substance

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abuse program); 28 C.F.R. 550.56(b) (2009) (regulation setting forth criteria for
eligibility for treatment program).
This Section 2241 petition is before the Court for preliminary review. Rule
4 of the Rules Governing Section 2254 Cases in United States District Courts
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.
As a general matter, Section 2241 is the appropriate means by which to
challenge the execution of a sentence, while Section 2255 is to be used to
challenge the validity of conviction and sentence. See Brown v. Rios, 696 F.3d
638, 640 (7th Cir.2012); Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003);
Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir. 2000). However, the issue raised
calls into question whether Section 2241 is the appropriate jurisdictional basis
for this particular action.
There is insufficient information before the Court upon which to conclude
that dismissal at this preliminary stage pursuant to Rule 4 is appropriate.
Therefore, Respondent J.S. Walton will be required to respond or otherwise
plead.

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IT IS HEREBY ORDERED that respondent shall answer the petition or
otherwise plead within thirty days of the date this order is entered. This
preliminary order to respond does not, of course, preclude respondent 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
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).
Finally, the Court notes, as should petitioner and respondent, that
petitioner, who has been denied pauper status, has yet to pay the required $5.00

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filing fee. The deadline for payment is August 14, 2013 (Doc. 4), and failure to
pay will likely result in the dismissal of the petition,
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2013.07.23
12:26:07 -05'00'

Signed this 23rd day of July, 2013.

Chief Judge
United States District Court

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