United States District Court, S.D. Indiana, Terre Haute Division
JOHN G. WESTINE, Petitioner,
WARDEN USP TERRE HAUTE, US. PROBATION, Respondents.
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
William T. Lawrence, Judge
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.He asks the court to vacate the
“illegal” detainers as void.
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.
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
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., No. 2:17-cv-558-JMS-MJD.
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 custody-whether 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).
the Petition is subject to dismissal because § 2241 is
not the appropriate procedural vehicle for the claim the
petitioner is raising at this time. 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 No. 3:14-cr-00010-GFVT-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.
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.
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.
these reasons, the petitioner's § 2241 Petition is
DISMISSED without prejudice.