Njos v. IDOC

Filing 7

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 10/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SCOTT J. NJOS,
BOP No. 30162-424,
IDOC No. R-21668,
Petitioner,
vs.
ILLINOIS DEPT. of CORRECTIONS,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

Case No. 17-cv-971-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner is a federal prisoner currently incarcerated in the Florence ADMAX USP
(“Florence”) in Colorado. He has brought this habeas corpus action pursuant to 28 U.S.C.
§ 2241 to challenge an outstanding detainer placed on him by the Illinois Department of
Corrections (“IDOC”) for an alleged parole violation.
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. After carefully reviewing the Petition, the
Court concludes that Petitioner is not entitled to relief, and the Petition must be dismissed
without prejudice.

1

The Petition
Petitioner served a state sentence and was released on April 13, 2007, from Graham
Correctional Center (which is located within the Southern District of Illinois), to serve a 3-year
parole term. (Doc. 1, p. 1). On June 15, 2007, Petitioner was taken into federal custody, and he
has remained a federal prisoner since that date.
On March 4, 2009, the IDOC placed a “custody detainer” on Petitioner for a parole
violation related to his state sentence. (Doc. 1, pp. 1, 3, 5). At the time the detainer was issued,
Petitioner had been in federal custody for over 20 months.

According to Petitioner, his

“maximum custody date” if he had been returned to state custody would have been October 14,
2010. He claims that his Illinois court case has long since been closed, and thus the detainer
should have expired with the closing of the state case. He attaches documentation from the
Circuit Court in Winnebago County showing that there is no arrest warrant for him from that
jurisdiction. (Doc. 1, p. 4).
Petitioner states that the IDOC refuses to lift the “illegal” custody detainer, despite the
fact that the underlying state court case has been closed. He seeks an order from this Court
compelling the IDOC to lift the detainer, cancel its warrant, and inform federal officials at
Florence that the detainer has been lifted. (Doc. 1, p. 2).
Discussion
Before a habeas action relating to a state-ordered imprisonment 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

2

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 petitioner 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.
Petitioner is not currently in state custody, however, he seeks to challenge an order that
would place him into state custody in the future once he is released from federal prison. As such,
he must bring his challenge to that future custody order in the Illinois state courts before seeking
relief in federal court.
The instant habeas Petition does not reveal any attempt by Petitioner to bring his claim in
state court before he filed this case. Further, Petitioner has not made any showing of cause and
prejudice for the failure to exhaust his state court remedies on this matter. He must pursue relief
in the Illinois courts before he may maintain a habeas action in federal court. Plaintiff may be
able to compel the IDOC to lift the custody detainer by filing an action under the Illinois habeas
corpus statute, 735 ILL. COMP. STAT. 5/10-101 et seq., or through filing a mandamus action. See
735 ILL. COMP. STAT. 5/14-101 et seq.; Turner-El v. West, 811 N.E.2d 728, 733 (Ill. App. 2004)
(citing Taylor v. Franzen, 417 N.E.2d 242, 247, aff’d on reh’g, 420 N.E.2d 1203 (Ill. App.
1981)).

3

Until Petitioner brings his challenge to the custody detainer in state court and completes
the state appellate review process, his claim remains unexhausted, and a federal habeas corpus
action is premature. Accordingly, this action shall be dismissed without prejudice.
Disposition
For the reasons stated above, the instant habeas petition is DISMISSED without
prejudice.

If necessary, Petitioner may re-file the claim raised herein after his state court

remedies are fully exhausted.
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
liable for a portion of the $505.00 appellate filing fee (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 proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may
toll the 30-day appeal deadline. A Rule 59(e) motion must be filed no more than twenty-eight
(28) days after the entry of the judgment, and this 28-day deadline cannot be extended.
In a case where a state prisoner is challenging his conviction or sentence under 28 U.S.C.
§ 2254, a certificate of appealability is required before he may pursue an appeal from the
dismissal of his habeas case. See 28 U.S.C. § 2253(c). However, if the case is brought to
challenge a parole revocation, no certificate of appealability is necessary. Walker v. O’Brien,

4

216 F.3d 626, 637-39 (7th Cir. 2000) (certificate requirement does not apply to a challenge to
“the specific (additional) detention” that results from the action of a non-judicial body such as a
prison disciplinary committee or parole board). Where a state prisoner brings a habeas action
under 28 U.S.C. § 2241, a certificate of appealability is required if the detention arose as the
result of a judicial branch action (e.g. an indictment or preliminary hearing). Evans v. Circuit
Court of Cook Co., 569 F.3d 665, 666 (7th Cir. 2009). However, a certificate of appealability is
not needed for a prisoner detained under an executive branch order. Evans, 569 F.3d at 666
(discussing Behr v. Ramsey, 230 F.3d 268 (7th Cir. 2000)).
In the case at bar, Petitioner is not presently in state custody. If he were to be taken into
state custody, the pertinent order would be the executive-branch detainer issued by the IDOC to
revoke his parole. Accordingly, the Court concludes that a certificate of appealability is not
required in this case, if Petitioner were to choose to pursue an appeal of this order.
The Clerk is DIRECTED to close this case and enter judgment accordingly.

Digitally signed by
Judge David R. Herndon
Date: 2017.10.24
09:38:07 -05'00'

IT IS SO ORDERED.

United States District Judge

5