Lodor v. Baldwin et al

Filing 12

ORDER DISMISSING CASE without prejudice to any other habeas petition or civil rights action petitioner wishes to file. Signed by Judge David R. Herndon on 3/10/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID EDWARD LODOR,
Petitioner,
vs.

CIVIL NO. 17-cv-0118-DRH

JOHN BALDWIN,
BRETT BROSMANN, and
SEAN DUFFY
Respondents.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner, currently incarcerated in Vandalia Correctional Center, brings this
habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of
the Illinois Department of Corrections’ (IDOC) calculation of his out-date, and his
underlying conviction for violating a protective order. The petition was filed on February
7, 2017. (Doc. 1).
Petitioner argues that trial transcripts are being withheld from him. (Doc. 1, p. 6).
He further argues that Judge T.S. McCann of Kendall County sentenced him to 1 term of
4 years’ parole at the end of his last consecutive charge. Id. While serving a sentence on
3 consecutive charges, petitioner caught another charge while trying to contact his son,
who has an order of protection against him. (Doc. 1, pp. 6-7). Petitioner argues that his
outdate is being miscalculated as a result of the interplay between the 2012 charges and
the 2014 charge. (Doc. 1, p. 6). He also alleges that he should not have been charged
with violating a protective order because two separate counties issued them and
petitioner believes that the two orders of protection cannot run together. (Doc. 1, p. 7).

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Petitioner’s third argument is that IDOC should have allowed him to take classes to earn
sentence credits. Id. Finally, petitioner argues that IDOC’s policy of requiring him to
have a home site prior to being released is effectively punishing him for being homeless.

Id.
Petitioner alleges that he filed a grievance regarding the calculation of his outdate,
although it is not clear how far he pursued that process or what the outcome was. (Doc.
1, p. 2). Petitioner states, “I have many IDOC employees bumping heads on this,” which

Id. Petitioner also states that as to the

implies that the issue has not been resolved.

underlying conviction, he has an appeal pending in the appellate court for the Second
District of Illinois. (Doc. 1, p. 3).
Discussion
Rule 4 of the Rules Governing § 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. After carefully reviewing the petition in the present
case, the Court concludes that petitioner is not entitled to relief, and the petition must be
dismissed.
Petitioner has invoked the wrong statute and his case will be dismissed on these
grounds.

The correct vehicle for a state prisoner seeking relief from a state court

conviction is § 2254, not § 2241. Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000);

see also Heck v. Humphrey, 512 U.S. 477, 481 (1994) (holding a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 “is the exclusive remedy for a state prisoner who

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challenges the fact or duration of his confinement and seeks immediate or speedier
release.”). The Court will not automatically re-characterize the petition as being made
pursuant to § 2254 because that statute contains a strict limit on the number of § 2254
petitions an inmate may file, and re-characterizing the petition may make it significantly
more difficult for a litigant to file another motion. See Castro v. United States, 540 U.S.
375, 382-83 (2003).
It is also clear that petitioner has not met the requirements of § 2254. Before a
habeas action may be heard in federal court, a petitioner is required to exhaust his
available remedies in state court, or else show cause and prejudice for the failure to
exhaust. 28 U.S.C. § 2254(b)(1); McAtee v. Cowan, 250 F.3d 506, 508-09 (7th Cir. 2001).
To exhaust his remedies, a state prisoner must fairly present his claim in each
appropriate state court including a state supreme court with powers of discretionary
review. Byers v. Basinger, 610 F.3d 980, 985 (7th Cir. 2010); Baldwin v. Reese, 541 U.S.
27, 29 (2004); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that
state prisoners “must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's established appellate
review process”); Spreitzer v. Schomig, 219 F.3d 639, 644-45 (7th Cir. 2000). A prisoner
need not pursue all separate state remedies that are available to him but must give “the
state courts one fair opportunity to pass upon and correct the alleged violations.” McAtee,
250 F.3d at 509. Further, “[i]f a prisoner fails to present his claims in a petition for
discretionary review to a state court of last resort, those claims are procedurally
defaulted.” Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999); see also O'Sullivan,
526 U.S. at 848.

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Petitioner has affirmatively stated that he has not exhausted his state court
remedies as to the underlying conviction. He has stated that the matter is still pending in
the appellate court and that he has not presented it to the state supreme court. It is
unclear as to whether he has exhausted his remedies as to the calculation of his outdate;
the proper course is to file a petition for mandamus in state court, and the petition
implies that the only step petitioner has taken so far is to file a grievance to the IDOC.

Toney v. Franzen, 687 F.2d 1016, 1021-22 (7th Cir. 1982) (“Under Illinois law,
mandamus is clearly the appropriate procedure to compel the Department of Corrections
to set petitioner’s mandatory release date in accordance with law.”). Notably, exhaustion
in a habeas case requires presentation to the state courts, not the relevant state agency. It
also appears petitioner’s claims regarding his underlying conviction and the calculation of
his outdate may be intertwined, as petitioner has implied that he caught another charge
while still incarcerated, which may have impacted the amount of parole or supervised
release that he had to serve, although it is not clear form the petition that this is
necessarily the case. Petitioner is strongly cautioned to make sure that he completes his
state court remedies prior to bringing an action in federal court as to all issues he wishes
to raise.
Pending Motions
Petitioner’s motion to proceed IFP will be addressed by separate order. (Doc. 6).
The Court also notes that petitioner filed 1 exhibit on February 9, 2017, a second
on February 28, 2017, and a third on March 2, 2017. (Doc. 3) (Doc. 4) (Doc. 8). All 3
exhibits appear to address incidents of prison discipline that have no bearing on this
case. The Court did not consider them as part of this screening. If petitioner wishes to

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bring claims based on his conditions of confinement or due process violations, he must
file suit under § 1983; he cannot bring such claims in a habeas suit.
Disposition
For the reasons stated above, the instant habeas petition is DISMISSED without
prejudice to any other habeas petition or civil rights action petitioner wishes to file. If
necessary, petitioner may re-file his claims raised herein after his state court remedies
are fully exhausted, so long as he does so within the applicable time limits. See 28 U.S.C.
§ 2244(d)(1). A claim for wrongful imprisonment in state custody should be brought
pursuant to § 2254.
Should petitioner desire to appeal this Court's ruling dismissing his petition for a
writ of habeas corpus, he must first secure a certificate of appealability, either from this
Court or from the Court of Appeals. See Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c)(1).
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts, the Court must issue or deny a certificate of appealability “when it enters
a final order adverse to the applicant.” Id. This petition has been dismissed without
prejudice because petitioner failed to invoke the proper statute.

Except in special

circumstances, such a dismissal without prejudice is not a final appealable order, so a
certificate of appeal ability is not required. See Moore v. Mote, 368 F.3d 754, 755 (7th
Cir. 2004).
Further, pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” This requirement has been interpreted by the Supreme Court to mean that an
applicant must show that “reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong.” S lack v. McDaniel, 529 U.S. 473, 484

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(2000). A petitioner need not show that his appeal will succeed, Miller-El v. Cockrell,
537 U.S. 322, 337 (2003), but a petitioner must show “something more than the absence
of frivolity” or the existence of mere “good faith” on his part. Id. at 338 (citation omitted).
If the district court denies the request, a petitioner may request that a circuit judge issue
the certificate. Fed. R. App. P. 22(b)(1)-(3).
Here, this Order dismisses this case without prejudice, which means there is no
final appealable order and a certificate of appealability is not required. Additionally, no
reasonable jurist would find it debatable whether this Court's ruling on petitioner’s
attempt to bring his habeas case pursuant to § 2241 without exhausting state court
remedies was correct. Accordingly, a certificate of appealability shall NOT be issued.
The Clerk is DIRECTED to close this case.

Digitally signed by
Judge David R. Herndon
Date: 2017.03.09
16:58:17 -06'00'

IT IS SO ORDERED
DATED: March 9, 2017

United States District Judge

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