Viehe v. Illinois

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 10/9/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PIERCE WILEY VIEHE,
No. 15852-040,
Petitioner,
vs.

Case No. 15-cv-1027-DRH

STATE OF ILLINOIS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Pierce Wiley Viehe, a federal prisoner who is currently
incarcerated in the USP-Marion, brings this habeas corpus action pursuant to 28
U.S.C. § 2241 to challenge the execution of his sentence.
In the Western District of Michigan, Case No. 10-cr-369, petitioner pled
guilty to failure to register as a sex offender. He was sentenced to 33 months in
prison, to be followed by 15 years of supervised release (Doc. 1, p. 1). According
to the petition, at the time he was charged with the federal offense, he was already
serving an Oklahoma state sentence. He was remanded to federal custody for the
proceedings in the Western District of Michigan, and then returned to Oklahoma.
Following his return, he was charged with a new Oklahoma state offense, and was
sentenced to four years on that new conviction.
Petitioner claims that he should have received credit against his federal
sentence for “federal time” he served in the Oklahoma state prison.

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The

Oklahoma state judge ordered that petitioner’s state sentence (apparently on the
later state charge) should run concurrently with his federal sentence. Petitioner
believes that if he were to receive proper credit, he should be eligible for earlier
release from federal custody.
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) 1 of the Rules Governing Section 2254 Cases in United States District Courts,
and a response shall be ordered. Before doing so, however, a word about the
respondent is in order.
Petitioner has erroneously named the State of Illinois as the respondent in
this matter.

In a habeas corpus proceeding, the proper respondent is the

prisoner’s custodian; in other words, the warden of the 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). Petitioner is an
inmate in the United States Prison at Marion, Illinois, which is a federal facility,
not a state prison. The State of Illinois is not petitioner’s custodian.
Accordingly, the Clerk is DIRECTED to terminate the State of Illinois 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).
1

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus
cases such as this action brought pursuant to § 2241.
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In any future documents filed in this case, petitioner shall identify the
Warden by his proper name.
IT IS HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this order is entered. 2 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 United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud 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

The response date ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only. See SDIL-EFR 3.
2

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provide such notice may result in dismissal of this action. See Fed. R. Civ. P.
41(b).

Digitally signed by
David R. Herndon
Date: 2015.10.09
16:20:58 -05'00'

IT IS SO ORDERED.
Dated: October 9, 2015

United States District Judge

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