White v. Owens

Filing 48

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 2/21/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM A. WHITE,
Petitioner,
–1374 DRH

vs.
MAUREEN BAIRD

W arden, USP-Marion,
Respondent.
MEMORANDUM AND ORDER
HERNDON
Petitioner William White, who is currently incarcerated in the Federal
Correctional Institution in Marion, Illinois, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (Doc. 6) in the Northern District of Illinois.
In the Petition, he challenges his conviction for transmitting in interstate
commerce threats to injure or intimidate individuals in violation of 18 U.S.C. §
875(c). (Doc. 6). The Petition was reviewed and a response ordered while this
case was pending in the Northern District of Illinois. (Doc. 8). The case was then
transferred to this District on December 21, 2016. (Doc. 41). In the interest of
clarity, and because the venue and respondent have since changed, this Court will
reiterate the findings of that Order (Doc. 8) and order a response from the
appropriate respondent.

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The Petition
Petitioner argues in the Petition (Doc. 6) that he is entitled to relief under

Elonis v. United States, 135 S. Ct. 2001 (2015). Elonis holds the government
must prove the defendant had the subjective intent to send the threats in order for
the defendant to be convicted for transmitting them in violation of 18 U.S.C. §
875(c). Petitioner argues that he was convicted under a prior interpretation of §
875(c), which did not require proof of subjective intent. He also claims that the
savings clause of 28 U.S.C. § 2255(e) applies to his case, so a habeas corpus
petition under 28 U.S.C. § 2241 is appropriate. See Brown v. Caraway, 719 F.3d
583, 586 (7th Cir. 2013) (citing In re Davenport, 147 F.3d 605 (7th Cir. 1998)).

On April 20, 2016, the Northern District of Illinois determined that
Petitioner “has made a sufficient showing to require a response by the
government.”

(Doc. 8, p. 2).

This Court finds no reason to disagree.

The

Respondent will therefore be ordered to answer the Petition (Doc. 6) or otherwise
respond within 30 days of the date this Order is entered.

Petitioner filed a Second Motion for Default Judgment (Doc. 47) on
February 17, 2017. In his Motion, he argues that the matter is ripe for default
judgment as the government is “forty days in default” from the date he moved to
substitute the respondent on January 12, 2017. (Doc. 47, p. 2). He also claims
that this is the fifth time the government has been in default in this case,

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explaining that the government missed the original filing deadline for response to
the Petition and requested extensions of time to file two times before filing a
motion to dismiss after the deadline. (Doc. 47, pp. 2, 3). Given the extensions of
time to file were granted (See Docs. 14, 25), Petitioner’s claim that the government
defaulted five times in this case is incorrect.
Regardless, this Court will not grant default judgment at this stage.
Although the Court may enter a default judgment against a party that fails to
respond after notice in a civil case, “default judgment, without full inquiry into the
facts, is especially rare when entered against a custodian in a habeas corpus
proceeding.” Ruiz v. Cady, 660 F.2d 337, 340 (7th Cir. 1981); FED. R. CIV. P. 55.
Accordingly, a default judgment should only be entered where the government's
delay has been extreme. Id. (citing Ruiz, 660 F.2d at 341). Even where the delay
approaches the tipping point, courts should still decide the motion on the merits
if possible because “if the petition has no merit[,] the delay in disposing of it will
in the usual case have caused no prejudice to the petitioner.” Bleitner v. Welborn,
15 F.3d 652, 653 (7th Cir. 1994).
The Respondent’s delay in this case is not so extreme as to warrant a
default judgment. In fact, the appropriate respondent according to Petitioner’s
Motion for Substitution (Doc. 44), B True, had not yet been substituted as a party
at the time Petitioner filed his Motion for Default Judgment.

(Doc. 47).

The

Court will therefore deny Petitioner’s Motion for Default Judgment and allow
True, the newly substituted Respondent, to answer.

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Petitioner has filed a Motion for Substitution of Respondent (Doc. 44),
which is hereby GRANTED. “[T]he proper respondent to a habeas petition is ‘the
person who has custody over [the petitioner].’” Rumsfeld v. Padilla, 542 U.S. 426,
434 (2004) (citing 28 U.S.C. §§ 2242, 2243). “The default rule is that the proper
respondent is the warden of the facility where the prisoner is being held.” Id. at
435. Petitioner claims that B True replaced Maureen Baird as Warden of the
Federal Correctional Institution in Marion, Illinois.

Accordingly, the Court

substitutes True as Respondent pursuant to Federal Rule of Civil Procedure 25.
Petitioner has also filed a Second Motion for Default Judgment Pursuant to
FED. R. CIV. P. 55(a), (d) (Doc. 47), which is DENIED for the reasons articulated
herein.
Disposition
IT IS HEREBY ORDERED that True shall answer the Petition or otherwise
plead within thirty (30) days of the date this order is entered (on or before March
23, 2017). 1 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.

The response date ordered herein is controlling. Any date that CM/ECF should
generate in the course of this litigation is a guideline only.
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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.
The Clerk is DIRECTED to substitute B TRUE as the respondent in this
action, and terminate M. BAIRD.
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 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.
Signed this 21st day of February, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.02.21
15:11:02 -06'00'

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