Lard v. Cross

Filing 8

ORDER DISMISSING CASE without prejudice, denying 2 MOTION to Appoint Counsel filed by Ellis Jerome Lard. Signed by Chief Judge David R. Herndon on 7/30/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELLIS JEROME LARD,
# 10137-026,
Petitioner,
vs.

Case No. 14-cv-774-DRH

JAMES N. CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner Ellis Lard, an inmate who is currently confined in the Federal
Correctional Institution located in Greenville, Illinois (“FCI-Greenville”), brings
this habeas corpus action pursuant to 28 U.S.C. § 2241. Petitioner claims that he
has completed his 210-month sentence but remains incarcerated with violent
criminals at FCI-Greenville (Doc. 1, pp. 2-3). See United States v. Lard, Case No.
94-cr-40009 (C.D. Ill. 1994). He also claims that he was stabbed at the Federal
Correctional Institution in Terre Haute, Indiana (“FCI-Terre Haute”), prior to his
transfer to FCI-Greenville (Doc. 1, p. 3). He asks for “help.” Petitioner seeks no
other form of relief.

For the reasons set forth below, the petition shall be

DISMISSED.
This matter is now before the Court for preliminary review of the habeas
petition.

Rule 4 of the Federal Rules Governing Section 2254 Cases in United

States District Courts provides that upon preliminary consideration by the district

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judge, “[i]f it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court, the
judge shall make an order for its summary dismissal and cause the petitioner to
be notified.” Rule 1(b) of those Rules gives this Court the authority to apply the
rules to other habeas corpus cases.
I.

Background

Petitioner pleaded guilty in 1994 to being a felon in possession of a firearm
pursuant to 18 U.S.C. § 922(g)(1). See United States v. Lard, Case No. 94-cr40009 (C.D. Ill. 1994) (“criminal case”). 1 He was sentenced under the Armed
Career Criminal Act to 210 months of imprisonment, followed by 60 months of
supervised release. Petitioner was released from prison following the completion
of his 210-month sentence. Soon thereafter, he was arrested for selling cocaine,
and his supervised release was revoked on September 28, 2012 (Doc. 74,
criminal case). Petitioner was re-incarcerated for five years. Id.
Petitioner filed a notice of appeal on October 10, 2012 (Doc. 76, criminal
case). See United States v. Lard, Appeal No. 12-3314 (7th Cir. 2012). However,
his court-appointed attorney contended that the appeal was frivolous and filed a
motion to withdraw as counsel under Anders v. California, 386 U.S. 738 (1967).
See id. (Doc. 9). Petitioner did not respond to the motion. The Seventh Circuit

1

In order to determine petitioner’s criminal and litigation history, the Court reviewed the Public
Access to Court Electronic Records (“PACER”) website (www.pacer.gov). See Bova v. U.S. Bank,
N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice public records
available on government websites) (collecting cases). Court documents are, of course, public
records of which the Court can take judicial notice. See Henson v. CSC Credit Servs., 29 F.3d
280, 284 (7th Cir. 1994).
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granted the attorney’s motion to withdraw and dismissed the appeal on April 25,
2013. 2 See United States v. Lard, 526 Fed. App’x 671 (7th Cir. 2013).
II.

Habeas Petition

According to the instant petition, petitioner has completed his 210-month
sentence, but he remains in detention. Petitioner claims that he is confined at
FCI-Greenville with violent criminals, despite the fact that he was not convicted of
a violent crime (Doc. 1, p. 2).

Petitioner goes on to state that “they have my

custody level at medium with 22 points and I only have 10th Crim Hist points and
I’m first time federal convicted inmate with a none violence crime” (Doc. 1, p. 3).
Petition also points out that he was stabbed during his prior incarceration at FCITerre Haute. He now seeks “help” (Doc. 1, p. 3).
III.

Discussion

Petitioner brings this action under the umbrella of habeas corpus law. 28
U.S.C. § 2241. However, it is not altogether clear why he filed the petition or what
relief he is seeking. Petitioner does not raise any specific claim. The petition
includes no request for relief, beyond a generalized request for “help” in the body
of the petition (Doc. 1, p. 3).

2

On February 14, 2014, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 in the United States District Court for the Southern District of Indiana. See Lard v. Oliver,
et al., Case No. 14-cv-00038 (S.D. Ind. 2014). In the petition, he asserted a single argument, i.e.,
his offense involved “no victim.” After finding that the petition contained no suggestion that
petitioner was confined in violation of the laws, treaties, or Constitution of the United States, the
district court dismissed the petition on February 26, 2014 (Doc. 4). On April 23, 2014, petitioner
filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, raising the
same argument. See Lard v. United States, Case No. 14-cv-04041 (C.D. Ill. 2014) (Doc. 1, p. 4).
The § 2255 motion is still pending.
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At the outset, this Court must independently evaluate the substance of
petitioner’s claim to determine if the correct statute--in this case 28 U.S.C. §
2241--is being invoked.

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)

(dismissing § 1983 claims that should have been brought as petitions for writ of
habeas corpus); Godoski v. United States, 304 F.3d 761, 763 (7th Cir. 2002)
(court must evaluate independently the substance of the claim being brought, to
see if correct statute is being invoked). A petition for a writ of habeas corpus is
the proper route “[i]f the prisoner is seeking what can fairly be described as a
quantum change in the level of custody-whether outright freedom, or freedom
subject to the limited reporting and financial constraints of bond or parole or
probation.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). If, however,
the prisoner “is seeking a different program or location or environment, then he is
challenging the conditions rather than the fact of confinement and his remedy is
under civil rights law.”

Id.; see also Pischke v. Litscher, 178 F.3d 497, 500

(7th Cir. 1999). Changes in a prisoner’s security level or changes in confinement
from one prison to another cannot be attacked using 28 U.S.C. § 2241. See Bunn
v. Conley, 309 F.3d 1002, 1008; DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir.
2000); Graham, 922 F.2d at 381; Pischke, 178 F.3d at 499.
Petitioner has not invoked the correct statute, by bringing this action
pursuant to 28 U.S.C. § 2241.

Petitioner neither claims that his custody is

unlawful nor explicitly requests release—either in the form of outright freedom or
under supervision.

He merely states that he served his original 210-month

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sentence and remains confined during the period that was originally designated
for supervised release.

These statements constitute nothing more than

background information.

Petitioner’s current confinement resulted from the

revocation of his supervised release, following the completion of his sentence, his
release from imprisonment, and his subsequent arrest for selling cocaine (Doc.
74, criminal case).

Petitioner does not take issue with the revocation of his

supervised release, which he has already challenged unsuccessfully on appeal.
See United States v. Lard, 526 Fed. App’x 671 (7th Cir. 2013).
Petitioner instead seems to challenge the conditions of his confinement. He
complains that he is currently confined with violent offenders at FCI-Greenville.
Petitioner explains that he is not a violent offender.

He also mentions being

stabbed at FCI-Terre Haute, where he was previously confined. Taken together,
the allegations suggest that petitioner is seeking placement in a less threatening
environment, either at FCI-Greenville or a lower security facility. He may also
wish to bring a claim related to his alleged stabbing. Petitioner’s remedy, if any,
lies in an action brought pursuant to Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971).

However, the Court makes no comment on the merits of a

Bivens claim. The Court is unable to provide relief in this habeas action, and the
petition shall be dismissed.
While courts sometimes construe a mistakenly labeled habeas corpus
petition as a civil rights complaint, see, e.g., Graham, 922 F.2d at 381-82
(collecting cases), it would be inappropriate to do so here, because petitioner

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would face obstacles under the Prison Litigation Reform Act. See generally 28
U.S.C. § 1915.

Therefore, this habeas corpus action is DISMISSED without

prejudice to petitioner pursuing relief in a complaint filed under Bivens.
IV.

Disposition

IT IS HEREBY ORDERED that, for the reasons stated above, the habeas
petition is DISMISSED without prejudice.
IT IS ALSO ORDERED that petitioner’s pending motion to appoint counsel
(Doc. 2) is hereby DENIED as MOOT.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4).
A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal.

See FED. R. APP. P. 24(a)(1)(C).

If

petitioner does choose to appeal and is allowed to proceed IFP, he will be
required to pay a portion of the $505.00 appellate filing fee in order to pursue his
appeal (the amount to be determined based on his prison trust fund account
records for the past six months) irrespective of the outcome of the appeal. See
FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

A timely motion filed

pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day 3 appeal
deadline. It is not necessary for petitioner to obtain a certificate of appealability.
3

A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days after the
entry of the judgment. FED. R. CIV. P. 59(e).
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Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
The Clerk is DIRECTED to close this case and enter judgment accordingly.

Digitally signed by
David R. Herndon
Date: 2014.07.30
14:29:04 -05'00'

IT IS SO ORDERED.
DATED: July 30, 2014

Chief Judge
United States District Court

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