Conroy v. USA

Filing 4

ORDER: This action is dismissed without prejudice with leave to amend the petition to name the correct respondent and redraft the petition. Petitioner shall file an amended petition naming the proper respondent on or before June 30, 2015. Should the amended petition not conform to these requirements, it shall be stricken and the entire case may be dismissed. Failure to file an amended complaint may result in dismissal of this case pursuant to Federal Rule of Civil Procedure 41(b). Signed by Judge David R. Herndon on 6/1/15. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN ALAN CONWAY,
No. 42054-177,
Petitioner,
vs.

CIVIL NO. 15-00528-DRH

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Judge:
Petitioner John Alan Conroy, an inmate currently housed at the United
States Penitentiary in Marion, Illinois, has filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, seeking to overturn his criminal conviction
and sentence (United States v. Conroy, Case No. 10-cr-00041-C-BG-1 (N.D. Tex.
2011)).
This case is now before the Court for a preliminary review of the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts.

Rule 4 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, such as this action under 28 U.S.C. § 2241.
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As a preliminary matter, it is observed that the caption of the petition is
problematic, in that it names the United States as the respondent. The proper
respondent in a Section 2241 petition is the petitioner's jailer (the warden of USPMarion), not the United States. Rumsfeld v. Padilla, 542 U.S. 426, 442, 447
(2004); Kholyavskiy v. Achim, 443 F.3d 946, 948–49 (7th Cir.2006). Therefore,
the petition must be dismissed. Dismissal shall be without prejudice, and Conroy
will be given an opportunity to file an amended petition naming the proper
respondent.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus
(Doc. 1) is DISMISSED without prejudice.

On or before June 30, 2015,

petitioner Conroy shall file and amended petition.

Failure to file an amended

petition by the prescribed deadline will result in the dismissal of this action with
prejudice.
IT IS SO ORDERED.
Signed this 1st day of June, 2015.

Digitally signed by
David R. Herndon
Date: 2015.06.01
15:22:42 -05'00'
United States District Judge

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