Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Robert W. Gettleman Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 4664 DATE 06/20/2012

CASE

TITLE

United States of America ex rel. Linda L. Shelton vs. Cook County Jail Executive

Director, Circuit Court of Cook County

DOCKET ENTRY TEXT

The habeas corpus petition (Dkt. No. 1) is dismissed for failure to exhaust an available state court remedy. 

The Court declines to issue a certificate of appealability. Civil Case Terminated. 

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Pro se petitioner Linda L. Shelton has brought seven related habeas corpus petitions. Shelton v.

Circuit Court of Cook County, No. 12 C 4656 (N.D. Ill.) (Gettleman, J.), Shelton v. Circuit Court of Cook

County, No. 12 C 4657 (N.D. Ill.) (Gettleman, J.), Shelton v. Circuit Court of Cook County, No. 12 C 4660

(N.D. Ill.) (Gettleman, J.), Shelton v. Circuit Court of Cook County, No. 12 C 4663 (N.D. Ill.) (Gettleman, J.),

Shelton v. Circuit Court of Cook County, No. 12 C 4664 (N.D. Ill.) (Gettleman, J.), Shelton v. Circuit Court

of Cook County, No. 12 C 4665 (N.D. Ill.) (Gettleman, J.), and Shelton v. Circuit Court of Cook County, No.

12 C 4666 (N.D. Ill.) (Gettleman, J.). These habeas corpus petitions arise from her pending seven

misdemeanor cases in the Circuit Court of Cook County, Municipal Division, District One. 

I. Background

According to attorney J. Nicolas Albukerk’s affidavit attached to each habeas petition, he represents

Shelton in one of the seven state cases. She is pro se in the others. (Shelton is pro se in all of the present

federal habeas corpus petitions before this Court.) Albukerk provides an affidavit in all seven federal cases

discussing Shelton’s state cases. 

Albukerk explains that Shelton is presently on trial before the Honorable Peggy Chiampas in the

Circuit Court of Cook County in the seven cases. On March 21, 2012, Judge Chiampas sua sponte dismissed

Shelton’s pretrial motions. Shelton believes that she cannot receive a fair trial before Judge Chiampas, and

did not appear for her May 29, 2012, court hearing. Judge Chiampas issued a bench warrant for Shelton’s

arrest. Shelton is now detained at the Cook County Jail. 

On May 30 and 31, Mr. Albukerk contacted the Chambers of the Municipal District’s Presiding Judge

Kenneth E. Wright, Jr. Albukerk wanted to bring an Illinois state habeas corpus petition under 735 ILCS

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STATEMENT

5/10-124 challenging Shelton’s confinement. Albukerk’s understanding of Cook County Local Rules is that

he must bring a habeas corpus petition before the presiding judge. Presiding Judge Wright’s staff allegedly

failed to assist Mr. Albukerk in filing Shelton’s state habeas corpus petition. Shelton believes that she has no

available state court remedy to challenge her current pretrial custody at the Cook County Jail due to the state

court’s failure to hear her state habeas corpus petition. 

Shelton raises what she entitles an “emergency” habeas corpus petition before this Court. She

explains that she has serious health problems and believes that she is suffering from an unlawful confinement

due to the alleged deficiencies in medical care at the Cook County Jail. She is also raising the various pretrial

challenges that were rejected by Judge Chiampas.

The Court’s Executive Committee, when barring Shelton from bringing civil litigation or entering the

Everett M. Dirksen Courthouse, noted that she was a “convicted felon, who has been diagnosed by her

personal psychiatrist as having a ‘psychiatric condition’ resulting in her ‘misconception of ongoing events.’”

In re Shelton, No. 10 C 1995 (N.D. Ill Apr. 8, 2010) (Dkt. No. 10). The Executive Committee barred Shelton

due to her excessive frivolous litigation and verbal harassment and confrontations with Court staff. (The

barring order provides an exception for bringing habeas corpus petitions. (No. 10 C 1995, Dkt. No. 15).)

Shelton’s present habeas corpus petitions are:

Shelton v. Circuit Court of Cook County, No. 12 C 4656 (N.D. Ill.) (Gettleman, J.): 

This petition challenges Illinois v. Shelton, No. 09 MC 286184 (Circuit Court of Cook County),

charging Shelton with disorderly conduct. Her claims are: Sixth Amendment speedy trial violation,

Fourteenth Amendment due process violation, and double jeopardy violation.

Although her first two claims invoke the Sixth and Fourteenth Amendments, it is clear that her claims

arise under Illinois law. Shelton applies the Illinois Speedy Trial Act requirement that she must be tried

within 160 days under 725 ILCS 5/103-5(b). As to the alleged due process violation, she invokes Illinois’s

statue allowing a party to request the substitution of a judge. 725 ILCS 5/114-5. Her discussion of the

claims are limited to state law. 

Shelton v. Circuit Court of Cook County, No. 12 C 4657 (N.D. Ill.) (Gettleman, J.):

This petition challenges Illinois v. Shelton, No. 09 MC 223774 (Circuit Court of Cook County),

charging Shelton with trespass to real property, disorderly conduct, and obstructing / resisting a peace officer. 

The petition raises the same speedy trial and due process arguments discussed above. This petition also adds

additional claims that she was arrested without probable cause, and the charges are fraudulent as shown by

the information contained in the police reports.

Shelton v. Circuit Court of Cook County, No. 12 C 4660 (N.D. Ill.) (Gettleman, J.):

This petition challenges Illinois v. Shelton, No. 09 MC 258392 (Circuit Court of Cook County),

charging Shelton with assault, disorderly conduct, resisting / obstructing a peace officer, and trespass to state

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STATEMENT

supported land. The petition raises the same speedy trial, due process, lack of probable cause, and false

charges arguments discussed above. 

Shelton v. Circuit Court of Cook County, No. 12 C 4663 (N.D. Ill.) (Gettleman, J.):

This petition challenges Illinois v. Shelton, No. 09 MC 238219 (Circuit Court of Cook County),

charging Shelton with trespass to state supported land, disorderly conduct, and obstructing / resisting a peace

officer. The petition raises the same speedy trial, due process, lack of probable cause, and false charges

arguments discussed above. 

Shelton v. Circuit Court of Cook County, No. 12 C 4664 (N.D. Ill.) (Gettleman, J.):

This petition challenges Illinois v. Shelton, No. 11 MC 241978 (Circuit Court of Cook County),

charging Shelton with two counts of simple battery, disorderly conduct, resisting a peace officer, and

criminal trespass. The petition raises the same speedy trial, due process, lack of probable cause, and false

charges arguments discussed above. 

Shelton v. Circuit Court of Cook County, No. 12 C 4665 (N.D. Ill.) (Gettleman, J.):

This petition challenges Illinois v. Shelton, No. 09 MC 260540 (Circuit Court of Cook County),

charging Shelton with criminal trespass to state supported land. The petition raises the same speedy trial, due

process, lack of probable cause, and false charges arguments discussed above. 

Shelton v. Circuit Court of Cook County, No. 12 C 4666 (N.D. Ill.) (Gettleman, J.):

This petition challenges Illinois v. Shelton, No. 09 MC 261096 (Circuit Court of Cook County),

charging Shelton with disorderly conduct. The petition raises the same speedy trial, due process, lack of

probable cause, and false charges arguments discussed above. 

II. Analysis 

Turning to the adjudication of Shelton’s present federal habeas corpus petitions, the Court notes that

each petition challenges a different state case. The Court has reviewed Shelton’s litigation history in

CMECF and determined that she has not previously challenged any of these state cases. She may proceed on

all seven federal habeas corpus petitions.

Shelton invokes 28 U.S.C. § 2254 in her present petitions, but these cases arise under 28 U.S.C.

§ 2241 because she is challenging her pretrial custody. Jacobs v. McCoaughtry, 251 F.3d 596, 597 (7th Cir.

2001); Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000). Section 2241 allows a pretrial detainee to bring

a habeas corpus petition, but this ability is limited by the desire of federal courts not to interfere with pending

state criminal prosecutions except in special circumstances. Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484, 489-92 (1973); Younger v. Harris, 401 U.S. 37 (1971); Sweeney v. Bartow, 612 F.3d

571, 573 (7th Cir. 2010); Olsson v. Curran, 328 Fed. App’x 334, 335 (7th Cir. 2009) (nonprecedential

decision); United States v. Castro, 937 F.2d 293, 296-97 (7th Cir. 1991); Neville v. Cavanaugh, 611 F.2d

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STATEMENT

673, 675 (7th Cir. 1979). 

The general rule is that the detainee must proceed with her claims through the regular state criminal

proceedings, and may raise claims through a 28 U.S.C. § 2254 federal habeas corpus petition only after a

state conviction. Sweeney, 612 F.3d at 573. But an exception is made for claims that must be addressed by

the federal court prior to a state conviction in order to prevent them from becoming moot. Id. Speedy trial

and double jeopardy claims are two recognized exceptions allowed to proceed under § 2241. Id.; see also

Braden, 410 U.S. 489-92. Habeas corpus relief (under both § 2241 and § 2254) is limited to questions of

federal law; relief is unavailable for errors of state law. Estelle v. McQuire, 502 U.S. 62, 67 (1991). Finally,

pretrial detainees raising permissible federal claims under § 2241 must exhaust those claims first through

available state court proceedings. Castor, 937 F.2d at 296-97; Olsson, 328 Fed. App’x at 335. 

Shelton’s overarching argument in her present federal habeas corpus petitions is that she has serious

health issues, and should not be detained in the Cook County Jail. Judge Chiampas had Shelton arrested for

her failure to appear at the May 29th hearing. Although Shelton is not clear on this point, the Court presumes

that she was on bail and her bail was revoked by Judge Chiampas due to her failure to appear.

The Supreme Court has assumed the bail clause of the Eighth Amendment applies to the States

without addressing the issue directly. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see also Galen v.

County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Pena v. Mattox, 84 F.3d 894, 903-04 (7th Cir.

1996); Faheem-El v. Klincar, 841 F.2d 712, 718 n.8 (7th Cir. 1988) (en banc). But even if Shelton has raised

a federal constitutional claim as to her bail situation in the present § 2241 petitions, this would not help her

cause because she has failed to exhaust the claim before the Illinois state courts. 

Shelton’s attempt at exhaustion was an Illinois habeas corpus petition under 735 ILCS 5/10-124 in the

Circuit Court of Cook County. The Court is uncertain why Shelton chose to bring a state habeas corpus

petition when Illinois Supreme Court Rule 604(c)(1) allows a criminal defendant to bring an immediate

interlocutory appeal of an adverse bail order. Illinois v. Santillan, 561 N.E.2d 655, 655 (Ill. 1990); Illinois v.

Morrow, 628 N.E.2d 550, 557 (Ill. App. Ct. 1993). In contrast, an Illinois habeas corpus proceeding is

limited to a challenge to the state court’s jurisdiction, or an allegation that a subsequent event requires the

prisoner’s immediate release. Beacham v. Walker, 896 N.E.2d 327, 332 (Ill. 2008). The Illinois Supreme

Court teaches that constitutional claims cannot be brought in an Illinois habeas corpus proceeding because

constitutional claims do not fit into these two permissible categories for Illinois habeas corpus. Id. 

Shelton’s proper action was to bring a Rule 604(c)(1) appeal, not a state habeas corpus petition. The

Circuit Court of Cook County’s alleged failure to adjudicate her state habeas corpus petition does not excuse

her failure to properly exhaust her federal claims. The exhaustion requirement requires the petitioner to

provide the state the “‘opportunity to pass upon and correct alleged violations of prisoners’ federal rights.’”

Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)). 

Detainees must follow the “normal . . . and established” process for raising their claims to the state courts. 

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This also includes raising the claims through the state

appeals process to the state’s court of last resort. Johnson v. Hulett, 574 F.3d 428, 431 (7th Cir. 2009)

(citations omitted).

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STATEMENT

Here, Shelton failed on two fronts. She did not raise her bail issue through Illinois’s established

process of a Rule 604(c)(1) interlocutory appeal. Attempting to file a state habeas corpus petition would

have been futile under Illinois law. And a second additional point is that she stopped her exhaustion efforts

at the trial court level. Exhaustion required Shelton to proceed through the full appellate process including to

the Illinois Supreme Court. These failures to exhaust doom her present § 2241 habeas corpus petitions. 

In addition, there are various other reasons why Shelton’s petitions must be dismissed. In Shelton v.

Circuit Court of Cook County, No. 12 C 4656 (N.D. Ill.) (Gettleman, J.), she raises a double jeopardy claim. 

But Illinois Supreme Court Rule 604(f) allows an immediate interlocutory appeal by a criminal defendant

following the denial of a motion to dismiss on double jeopardy grounds. Illinois v. Griffith, 936 N.E.2d

1174, 1187 (Ill. App. Ct. 2010). Just like her failure to properly appeal the bail issue, this failure to exhaust

bars any double jeopardy claim. 

Her other claims such as due process, lack of probable cause for arrest, and false charges allegations

cannot be raised in a § 2241 proceeding. These claims will not be mooted by petitioner’s state court

conviction and so are properly raised through a § 2254 proceeding following the completion of the state court

case should she be convicted. Finally, petitioner’s speedy trial and due process claims, though invoking

federal constitutional provisions, clearly arise under Illinois law because Shelton argues only the state law

statutory issue. These noncognizable state law claims cannot be adjudicated in a federal habeas corpus

petition. Gray v. Netherland, 518 U.S. 152, 163 (1996) (holding that a general invocation to due process,

without a discussion of the underlying merits of the claim, is insufficient to raise a federal constitutional

claim); United States ex rel. Kendrick v. McCann, No. 08 C 6281, 2010 WL 3700233, at *15 (N.D. Ill. Sept.

8, 2010) (invoking Illinois’s Speedy Trial Act, 725 ILCS 5/130-5, is insufficient to raise a federal

constitutional speedy trial claim because the Illinois Act provides rights above and beyond those provided by

the U.S. Constitution). 

 Consequently, all of Shelton’s present § 2241 petitions are dismissed. The Court also declines to issue

a certificate of appealability under Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts because there is no substantial showing of a denial of a constitutional right in this case. See

Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 2008) (citing 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, & n.4 (1983)); Davis v. Borgen,

349 F.3d 1027, 1028 (7th Cir. 2003)) (setting forth requirements for a certificate of appealability); see also

Evans v. Circuit Court of Cook County, Ill., 569 F.3d 655, 666 (7th Cir. 2009) (certificate of appealability is

required for appeal from denial of habeas corpus petition brought under 28 U.S.C. § 2241 when the custody

is the result of a state court order). 

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