WESTINE v. WARDEN USP TERRE HAUTE et al

Filing 4

Entry Dismissing Action and Directing Entry of Final Judgment - Petitioner John G. Westine, Jr., currently incarcerated at the United States Penitentiary in Terre Haute, Indiana ("USP-Terre Haute"), brings this habeas corpus action pursua nt to 28 U.S.C. § 2241 to challenge the execution of his sentence with relation to two detainers placed upon him. He asks the court to vacate the "illegal" detainers as void. The petitioner's motion for leave to proceed without prepaying fees or costs, Dkt. No. 2 , is granted. The petitioner's § 2241 Petition is DISMISSED without prejudice. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 1/2/2018. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JOHN G. WESTINE,
Petitioner,
v.
WARDEN USP TERRE HAUTE,
US. PROBATION,
Respondents.

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No. 2:17-cv-00567-WTL-MPB

Entry Dismissing Action and Directing Entry of Final Judgment
Petitioner John G. Westine, Jr., currently incarcerated at the United States Penitentiary in
Terre Haute, Indiana (“USP-Terre Haute”), brings this habeas corpus action pursuant to 28 U.S.C.
§ 2241 to challenge the execution of his sentence with relation to two detainers placed upon him.1
He asks the court to vacate the “illegal” detainers as void.

1

The exhibit attached to the petition describes the detainers as follows:

Dkt. No. 1 at p. 10.

I. FILING FEE
The petitioner’s motion for leave to proceed without prepaying fees or costs, Dkt. No. 2, is
granted because the Court finds that the petitioner does not have the assets or means to pay even
an initial partial filing fee. Because the Prison Litigation Reform Act mandates that a prisoner will
not be prohibited from bringing a civil action for the reason that he lacks the assets and means to
pay an initial partial filing fee, 28 U.S.C. § 1915(b)(4), the petitioner will be granted a waiver of
payment of the initial partial filing fee in this case. He is still obligated, however, to pay the full
five dollar filing fee pursuant to the statutory formula set forth in 28 U.S.C. § 1915(b)(2). See id.
§ 1915(b)(1). “All [28 U.S.C.] § 1915 has ever done is excuse pre-payment of the docket fees; a
litigant remains liable for them, and for other costs, although poverty may make collection
impossible.” Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).
II. 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 reviewing the
Petition in the present case, the Court concludes that petitioner is not eligible for relief under
§ 2241 at this time, and the Petition must be dismissed.
Petitioner is essentially seeking an order from this Court directing the removal of two
detainers. This is the same claim previously raised in Westine v. Warden USP Terre Haute and
United States Parole Comm., Case No. 2:17-cv-558-JMS-MJD.

At the outset, this Court must independently evaluate the substance of a petitioner’s claim
to determine if the correct statute – in this case 28 U.S.C. § 2241 – is being invoked. Bunn v.
Conley, 309 F.3d 1002, 1006-07 (7th Cir. 2002); Godoski v. United States, 304 F.3d 761, 763 (7th
Cir. 2002) (court must evaluate independently the substance of the claim being brought, to see if
correct statute is being invoked). A petition for a writ of habeas corpus is the proper route “[i]f the
prisoner is seeking what can fairly be described as a quantum change in the level of custodywhether outright freedom, or freedom subject to the limited reporting and financial constraints of
bond or parole or probation.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991).
Here, the Petition is subject to dismissal because § 2241 is not the appropriate procedural
vehicle for the claim the petitioner is raising at this time.2 See Merriweather v. U.S. Parole
Comm'n, No. 16-CV-0561-DRH, 2016 WL 3683128, at *2–3 (S.D. Ill. July 12, 2016) (dismissing
§ 2241 petition seeking to remove a detainer). It appears from the limited facts provided in the
Petition and the petitioner’s criminal record that petitioner is merely seeking the removal of a
detainer, though he will remain in custody as a result of his conviction for several crimes in the
United States District Court for the Eastern District of Kentucky in Case No. 3:14-cr-00010GFVT-REW. Specifically, Judgment reflecting a term of imprisonment of 480 months was entered
on March 18, 2016, in that criminal case. In addition, petitioner’s direct appeal remains pending
before the Sixth Circuit Court of Appeals in No. 16-5356.

2

In addition, district courts should not construed a mistakenly-labeled habeas corpus
petition as a civil rights complaint. Bunn, 309 F.3d at 1007; Moore v. Pemberton, 110 F.3d 22, 24
(7th Cir. 1997). This is because a petitioner can face obstacles under the Prison Litigation Reform
Act. See generally 28 U.S.C. § 1915. Specifically, a petitioner is responsible for paying a much
higher filing fee of $400, and a petitioner might be assessed a “strike” if the Court determined that
the petitioner’s action was frivolous, malicious, or failed to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(g).

Thus, the request to remove a detainer does not seek an outright release from custody or a
quantum change in custodial status—the two primary remedies to be sought under a habeas
petition. Instead, the petitioner merely seeks an order from this Court directing the U.S. Parole
Commission and U.S. Marshal Service to remove a detainer despite the fact that petitioner will
remain in custody.
To summarize, petitioner has not and cannot show that a grant of his requested relief would
result in his release or some other quantum change in his custodial status. Absent a showing of this
nature, he does not yet qualify for relief under § 2241, because he does not argue that he is
wrongfully being held. His claim at this juncture is speculative. Instead, the U.S. Marshals Service
and the United States Parole Commission have until the end of his current term of imprisonment
to decide whether or not they will act upon the detainer. Until that moment arises, this Court is not
able to grant the relief requested.
For these reasons, the petitioner’s § 2241 Petition is DISMISSED without prejudice.
IT IS SO ORDERED.

Date: 1/2/18

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution:
JOHN G. WESTINE
93555-012
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808