Brown v. Johnston

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DAVID BROWN, )

Petitioner,

vs. Case No. 22-cv-670-DWD

MICHAEL JOHNSTON,

Respondent}. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Petitioner David Brown, presently an inmate of the Federal Bureau of Prisons and

incarcerated at USP Marion, brings this habeas corpus action pursuant to 28 U.S.C. § 2241

to challenge the enforcement of a military order of protection (Doc. 1). Petitioner claims

that the military order of protection is no longer in effect because he is no longer in

military custody, however, he argues that USP Marion, the Commandant at the United

States Disciplinary Barracks, or his ex-wife continue to wrongfully enforce the order

against him (Doc. 1). This enforcement prevents Petitioner from having visitation or

communication with his child (Id.). Petitioner specifically asks the Court “to tell the

Military that the orders of protection are no longer valid” and for “the military to rescind

all orders of protection” (Doc. 1, p. 7).

\Petitioner is currently incarcerated at USP Marion. The proper respondent in habeas proceeding is

Petitioner’s current custodian. Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). Accordingly, the Clerk of the

Court is therefore DIRECTED to substitute the Warden of USP Marion for Respondent Johnston.

This matter is now before the Court for preliminary review of the Petition (Doc.

4). Rule 4 of the Federal Rules Governing § 2254 Cases in United States District Courts

provides that upon preliminary consideration by the district 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) gives this Court the authority to apply the rules to other habeas

corpus cases, like this one.

Also, before the Court are Petitioner’s motion for leave to proceed in forma pauperis

(Doc. 8), and motion for leave to file an amended petition (Doc. 9). Turning first to the

motion for leave to amend (Doc. 9), the Court observes that Petitioner is not seeking to

file a new habeas petition but instead supplies additional facts in support of his original

petition. Specifically, Petitioner contends that Marion is not preventing Petitioner from

exercising his visitation rights, but that the Commandant at the United States Disciplinary

Barracks (“USDB”) in Fort Leavenworth, Kansas and his ex-wife are still attempting to

enforce the relevant military protective order against him (Doc. 9). Accordingly,

Petitioner requests that the USDB Commandant be substituted as the Respondent in this

matter. This request is DENIED. The federal habeas statute provides that the proper

respondent to a habeas petition is “the person who has custody over [the petitioner].”

Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242). Petitioner is

currently incarcerated at USP Marion. Accordingly, the Warden of USP Marion is the

correct respondent for this proceeding. Nevertheless, to the extent Petitioner seeks to

supplement his Petition with the additional allegations in his motion for leave to amend,

that request is GRANTED. The Court will consider the allegations in the motion (Doc.

9) with those in the Petition (Doc. 1) in conducting its preliminary review.

Petitioner states he is serving a sentence of incarceration after having been

convicted of a crime by the “military court martial” in March 2016. His petition (Doc. 1)

and supplement (Doc. 9) are largely devoid of any details concerning his conviction and

sentence. However, the Court observes that Petitioner has previously filed a petition for

writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the

District of Kansas, asserting different grounds for relief. See Brown v. Johnston, Case No.

21-3010-JWL (D. Kan.), at Doc. 35.2 In the order denying Petitioner’s § 2241 petition, the

district court stated that Petitioner was a former active-duty member of the United States

Army and had been sentenced after a general court-martial. Id. Petitioner transferred to

the custody of the Federal Bureau of Prisons in February 2021, and his maximum release

date is January 3, 2026. Id.

In order to obtain habeas corpus relief, an inmate must demonstrate that “[h]e is

in custody in violation of the Constitution or laws or treaties of the United States. 28

U.S.C. § 2241(c)(3). The relief available under § 2241 extends to prisoners serving military

convictions. See Clinton v. Goldsmith, 526 U.S. 529 (1999) (“And of course, once a criminal

conviction has been finally reviewed within the military system, and a service member

in custody has exhausted other avenues provided under the UCMJ to seek relief from his

2 The Court can take judicial notice of these documents. See Daniel v. Cook Cty., 833 F.3d 728, 742 (7th Cir.

2016) (“Courts routinely take judicial notice of the actions of other courts or the contents of filings in other

courts.”).

conviction ... he is entitled to bring a habeas corpus petition, see 28 U.S.C. § 2241(c),

claiming that his conviction is affected by a fundamental defect that requires that it be set

aside.”); Burns v. Wilson, 346 U.S. 137, 139 (1953); United States v. Augenblick, 393 U.S. 348,

350 (1969); Hurn v. Kallis, No. 1:17-CV-01403-JBM, 2018 WL 2724050 (C.D. IIL. June 6,

2018), aff'd, 762 F. App'x 332 (7th Cir. 2019).

Similar to challenges brought by prisoners in custody pursuant to state court

judgments under 28 U.S.C. § 2254, petitioners seeking habeas relief from a military

conviction must exhaust all available remedies prior to filing their § 2241 petition in

federal court. That is, the petitioner must show that he exhausted “all available military

remedies.” Schlesinger v. Councilman, 420 U.S. 738, 758 (1975); Gusik v. Schilder, 340 US.

128, 131-32 (1950) (drawing a direct comparison between the exhaustion requirement for

federal habeas attacks on military convictions and state criminal convictions).

Here, Petitioner has not expressly alleged that he is challenging the legality of his

conviction or the duration of his confinement. Instead, he appears to be challenging the

enforcement of a specific order of protection resulting in an alleged infringement on

Petitioner's visitation or parental rights. The Petition does not, however, indicate that the

specific order of protection Petitioner is challenging is connected to the current military

conviction and sentence he is serving. Accordingly, the Court is unable to determine a

basis to assert habeas jurisdiction over this claim.

The Supreme Court has held that federal habeas corpus jurisdiction may not be

invoked to consider collateral challenges to paternal rights or child custody. See Leliman

v. Lycoming Cty. Children's Servs. Agency, 458 U.S. 502, 511-512 (1982); see also Ali A. v. New

Jersey Div. of Child, Prot. & Permanency, No. CV 21-15451 (KM), 2022 WL 102264, at *2

(D.N.J. Jan. 11, 2022) (habeas jurisdiction does not exist to challenge state court child

custody determinations). Similarly, at least three federal district courts have rejected

habeas petitions which challenged civil protection or restraining orders but not the

underlying criminal conviction. See McCreary v. Birkett, No. 2:06-CV-11195, 2006 WL

3257223, at *2-3 (E.D. Mich. Nov. 9, 2006) (dismissing § 2241 petition challenging the

validity of a personal protection order and not petitioner’s underlying criminal

conviction for a lack of subject matter jurisdiction) (citing Strout v. State of Maine, No.2004

WL 1571768, *3 (D.Me. July 13, 2004); Jones v. McKibben, No.1994 WL 62105, *1 (N.D.Cal.

February 8, 1994)). Specifically, in McCreary, the district court reasoned that the language

of § 2241(c)(3)’s “in custody” requirement is jurisdictional, and therefore concluded that

because the petitioner was not in custody pursuant to the relevant order of protection

being challenged that it did not have subject matter jurisdiction over the petition.

McCreary, 2006 WL 3257223, at *3.

Likewise, here, Petitioner does not indicate that the specific order of protection he

is challenging is connected to the current military conviction he is serving. Nor does

Petitioner argue that he is otherwise “in custody” pursuant to that military order of

protection. Accordingly, at present the Petition fails to state a claim for habeas relief.

Instead, the claim raised in the Petition appears to be more aptly construed as a civil rights

claim or a challenge to the conditions of Petitioner’s confinement for which relief may be

available in a separate civil proceeding brought under 42 U.S.C. § 1983. See, e.g., Preiser

v. Rodriguez, 411 U.S. 475, 489-90 (1973) (a civil rights action is the proper remedy for

prisoner who is making constitutional challenge to conditions of his prison life but not to

fact or length of his custody).

Nevertheless, even if the military order of protection was related to Petitioner’s

conviction, Petitioner has not alleged sufficient details of the nature of his conviction to

determine specific grounds for relief that are recognizable under Section 2241. Nor does

the Petition provide sufficient detail of Petitioner’s exhaustion efforts for the Court to

conclude that any arguments challenging his conviction are ripe for review. Rule 2 of the

Rules Governing Section 2254 Cases requires that a petition “specify the grounds for relief

available to the petitioner” and “state the facts supporting each ground.” The Petition

fails to meet that requirement.

Accordingly, without making any decision on the merits of Petitioner’s claim, the

Court must dismiss the habeas petition because it fails to state a claim for habeas relief.

The Petition (Doc. 1) and supplement (Doc. 9) are therefore DISMISSED without

prejudice. The Court will allow Petitioner a chance to amend his Petition if he indeed is

attempting to assert a claim for which habeas relief may be available. Petitioner has until

May 5, 2022 to submit an Amended Petition. Failure to file an Amended Petition will

result in dismissal of this case for failure to state aclaim. Likewise, the motion for leave

to proceed in forma pauperis (Doc. 8) is DENIED, without prejudice.

Alternatively, to the extent that Petitioner is seeking to challenge the enforcement

of the order of protection as it relates to an alleged infringement on his visitation or

parental rights through a civil rights complaint, Petitioner may need to file a civil rights

case pursuant to 42 U.S.C. § 1983 after first exhausting any relevant administrative

remedies. The Court cannot simply convert his § 2241 petition into a § 1983 complaint.

See Glaus v. Anderson, 408 F.3d 382, 389 (7th Cir. 2005). As directed by the Seventh Circuit

in Glaus, 408 F.3d at 389-390, Petitioner is informed of the following:

1. This Court is not making any decision on the merits of his claim and

is not deciding whether the facts alleged in his petition would state a cause of

action under Section 1983.

2. Petitioner may refile his claim under the proper legal label, subject

to the normal rules such as those prohibiting frivolous lawsuits and requiring

payment of a filing fee. That complaint would again be subject to preliminary

review

3. If he refiles his claim as a 42 U.S.C. § 1983 action, he may be assessed

a “strike” under 28 U.S.C. § 1915(g) if that action is dismissed because it is

frivolous, malicious, or fails to state a claim upon which relief may be granted.

Petitioner is further advised that the filing fee for a civil rights action is $402.00

unless he is found eligible to proceed in forma pauperis. The Clerk is DIRECTED to send

Petitioner a blank civil rights complaint form for his review.

SO ORDERED.

Dated: April 15, 2022 U. Lb, i Ls hesce

DAVIDW.DUGAN

United States District Judge