Opinion
No. 00 C 3552
June 16, 2000
MEMORANDUM ORDER
Erdogan Kurap ("Kurap") has filed a self-prepared Petition for Writ of Habeas Corpus ("Petition"), for purposes of which he has both completed and supplemented the form Petition supplied by the Clerk of this District Court for use by persons in state custody. Unlike the usual state prisoner seeking federal habeas relief, Kurap challenges neither the constitutionality of his Conviction nor the constitutionality of the sentence imposed instead his contention is that he is being held unlawfully because a treaty between his native country (Turkey) and the United States requires that he be transferred back to Turkey to serve out his remaining Illinois sentence (and in that respect, 28 U.S.C. § 2254(a) permits habeas petitions to challenge a custodial status in violation of a treaty).
All further references to Title 28's provisions will simply take the form "Section ___."
Kurap has accompanied his Petition with an Application To Proceed Without Prepayment of Fees ("Application") and a Motion for Appointment of Counsel ("Motion"). As to those documents:
1. Kurap has, as the statute requires, annexed to the Application a printout of his trust fund account at Menard Correctional Center. That printout discloses a balance of several hundred dollars — and so Kurap can readily pay the modest $5 fee applicable to habeas cases. Accordingly the Application is denied, and although this opinion later directs a response to the Petition, Kurap is advised that unless he causes the $5 filing fee to be paid on or before June 30, 2000 this Court would be constrained to dismiss the Petition for such nonpayment.
2. As for the Motion, Kurap has failed to fill out its most critical component: a statement of any efforts he has made to obtain counsel on his own. Even were that not the case, though, in all events this Court will be better equipped to address that issue when the responsive pleading referred to in the next paragraph is in hand. Hence the Motion is denied for the present, but without prejudice to its potential reassertion later on.
Because of the nature of Kurap's claim, this Court cannot determine at the threshold whether he has satisfied either alternative precondition (1) of the exhaustion of available state remedies (Section 2254(b)(1)(A)) or (2) of the absence of available state corrective process (Section 2254(b)(1)(B)). Accordingly, as permitted by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, respondent Warden Donald Snyder, Jr. is ordered to file an answer or other pleading on or before July 14, 2000 addressing that and all other questions posed by the Petition. This Court will then determine what further steps are called for.