Cilek v. Warden Davies

Filing 3

OPINION AND ORDER: The Court DENIES WITHOUT PREJUDICE the petition for relief under 28 U.S.C. § 2254. The clerk is DIRECTED to close the case. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 3/8/17. (Copy mailed to pro se party)(jld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANTHONY WAYNE CILEK,
Petitioner,
vs.
WARDEN DAVIES,
Respondent.

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CAUSE NO. 2:17-CV-104

OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2241 for Writ of Habeas Corpus filed by Anthony
Wayne Cilek, a pro se prisoner, on March 6, 2017. For the reasons
set forth below, the Court DENIES the habeas corpus petition
WITHOUT PREJUDICE. The clerk is DIRECTED to close this case.

DISCUSSION
Cilek is being held in the Lake County Jail as a pre-trial
detainee. He is asking to be released and presumably to have the
charges against him dismissed. “Ordinarily the attempt of a state
prisoner to obtain federal habeas corpus relief in advance of his
state criminal trial [is] completely hopeless.” United States ex
rel. Stevens v. Circuit Court of Milwaukee County, 675 F.2d 946,
947 (7th Cir. 1982). This is one of those ordinary cases. Though
the circuit in Stevens provided for a narrow exception to entertain

some double jeopardy claims, this case does not present a double
jeopardy

claim.

Here,

Cilek

argues

that

he

was

arrested

in

violation of the Fourth Amendment. This is a question to be
resolved in the first instance by the State trial court or the
State Appellate Courts – not this Court. Thus, to the extent that
Cilek believes that he has a viable defense to the charges against
him, he needs to first present those claims to the State courts –
at trial, on appeal, and ultimately to the Indiana Supreme Court.
See Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir. 2004).
Therefore this petition will be dismissed without prejudice. Then,
after he has presented his claims to the Indiana Supreme Court, he
may return to this Court and file another habeas corpus petition
challenging the conviction, if necessary.

CONCLUSION
For the reasons set forth above, the Court DENIES the habeas
corpus petition WITHOUT PREJUDICE. The clerk is DIRECTED to close
this case.

DATED: March 8, 2017

/s/RUDY LOZANO, Judge
United States District Court

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