Opinion
Case No. 16 C 9961
11-04-2016
WALTER J. BRZOWSKI, Petitioner, v. ILLINOIS DEPARTMENT OF CORRECTIONS WARDEN MICHAEL MELVIN, Respondents.
MEMORANDUM ORDER
This action, brought pro se by state prisoner Walter J. Brzowski ("Brzowski"), is his second federal effort to gain relief from his current imprisonment. After Brzowski's Petition for Habeas Corpus Discharge Instanter (the "Petition") was initially filed in the United States District Court for the Central District of Illinois on October 19 of this year, the action was quickly transferred to this Northern District of Illinois (it was received in the Clerk's Office here on October 24) and was assigned at random to this Court's calendar. This Court promptly inquired of its colleague Honorable Jorge Alonso as to the nature and status of Brzowski's first 28 U.S.C. § 2254 effort, and it learned from him (1) that the subject matter of the two actions was entirely different and (2) that the earlier action (Brzowski v. Warden Nicholas Lamb, 14 C 4014) had been finally resolved (see Judge Alonso's October 30 order in that case) and was already on appeal. This Court therefore turned to the preliminary review of the Petition called for by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules").
Further citations to provisions of Title 28 will simply take the form "Section --" omitting the prefatory "28 U.S.C. §".
In brief, what Brzowski complains of in this action is that he has continued to be held in custody beyond the date when he was entitled to be released from prison, having served his full term less applicable credits. That contention calls for a response from the State of Illinois (perhaps including the questions whether this case properly seeks relief under Section 2254 or should instead be considered in terms of the time-hallowed Great Writ now embodied in Section 2241 -- and if so, what the significance of that possible distinction might be).
Accordingly the Illinois Attorney General's Office is ordered to file an answer to the Petition on or before December 9, 2016 (see Section 2254 Rule 5). This action is set for an initial status hearing at 9 a.m. on December 16, 2016.
It is hoped that the timetable set in the text will suffice for a thoroughly prepared response by the Attorney General's Office. After all, the nature of Brzowski's current claim should not involve dredging up, reviewing and submitting extensive materials from his original conviction and ensuing state court appeals, as is typically involved in most Section 2254 litigation (see Section 2254 Rule 5(c) and (d)) -- and if it develops that Brzowski is right in his claim and that he is entitled to immediate release, prompt consideration of the merits of his claim would best serve the interests of justice. If however the Attorney General's Office finds the allotted time inadequate, a motion for extension should be noticed up before this Court and will be dealt with appropriately. --------
/s/
Milton I. Shadur
Senior United States District Judge Date: November 4, 2016