# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 6, 2012

Decided January 24, 2013

Before

RICHARD A. POSNER, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 12

‐ 2660

UNITED STATES OF AMERICA, Appeal from the United States

District Court for the Central

Plaintiff

‐ Appellee , District of Illinois.

v. No. 2:98

‐ cr

‐ 20061

‐ MPM

‐ DGB

‐ 1

LEE TERRY, Michael P. McCuskey

, Judge

.

Defendant

‐ Appellant

.

O R D E R

Lee Terry was convicted in 1999 of three counts related to the armed robbery of a

credit union. He was sentenced to life imprisonment pursuant to the “Three Strikes”

provision of 18 U.S.C. § 3559(c). Mr. Terry later filed a direct appeal and then a habeas

corpus petition, both of which were denied. Several times, he attempted to file successive

habeas petitions. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

### No. 12

‐ 2660 Page 2

Mr. Terry alleges that, at some point before filing the motion which is the subject of

this appeal, he made Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests to

various agencies and governmental bodies. 1 Mr. Terry was dissatisfied with the responses,

or lack thereof, to his requests. He therefore filed in the district court a “Motion Requesting

In Camera Review.” Mr. Terry’s motion asked the district court to compel production of

trial

‐ related information that he had sought previously through FOIA requests and to

review that information in camera. Prior to filing the motion, Mr. Terry had not filed a

complaint to commence an action in the district court nor was he a party in an already

‐ pending matter. The district court denied the motion, holding that it could not review the

motion without an action pending before it. The district court was correct.

The district court first considered Mr. Terry’s motion as a request to order

production of documents. The court correctly concluded that, because no proceeding was

pending before it, it could not consider the motion. The district court next considered the

possibility that Mr. Terry was attempting, through his motion, to state a cause of action

under the FOIA. 2 The court concluded, however, that Mr. Terry had not successfully done

1 

### Mr. Terry claims that he made FOIA requests to the Champagne, Illinois Police

Department, the Clerk of Court and the Federal Defender Office. These entities are not

subject to the FOIA; the FOIA applies only to agencies and instrumentalities of the

executive branch of the federal Government. See 5 U.S.C. § 552(f)(1). The Champagne

Police Department is a state entity and the Clerk of Court and the Federal Defender

Office are within the Judiciary. Therefore, Mr. Terry cannot bring a cognizable FOIA

action against them.

2 

### The Government’s contention that Mr. Terry’s motion is an attempted

successive habeas petition is without merit. Although Mr. Terry discussed the merits of

his underlying criminal conviction at some length in his motion to the district court, it is

clear that the essence of his claim is a FOIA request. The Supreme Court has held that

“[h]abeas is the exclusive remedy

. . . for the prisoner who seeks “immediate or speedier

release” from confinement.” Skinner v. Switzer

, 131 S. Ct. 1289, 1293 (2011) (quoting

Wilkinson v. Dotson

, 544 U.S. 74, 82 (2005)). “Where the prisoner’s claim would not

necessarily spell speedier release, however, suit may be brought.” Id. (internal

quotation marks omitted). A FOIA action seeking access to documents does not

implicate the plaintiff’s conviction and is not a request for “present or future release”

which is the “‘core’ [of] habeas corpus relief.” Dotson

, 544 U.S. at 81. See also Razzoli v.

Fed. Bureau of Prisons

, 230 F.3d 371, 376 (D.C. Cir. 2000) (holding that the plaintiff’s FOIA

(continued...)

### No. 12

‐ 2660 Page 3

so because he had not filed a complaint. In order to bring an action under the FOIA in

district court, the plaintiff must file a complaint. See 5 U.S.C. § 552(a)(4)(B). Although

required to construe pro se filings liberally, see McCormick v. City of Chicago

, 230 F.3d 319,

325 (7th Cir. 2000), the district court could not construe Mr. Terry’s motion as a complaint

commencing a FOIA action because Mr. Terry never paid the required filing fee and never

filed a motion for leave to proceed in forma pauperis. Given these circumstances, the

district court was correct to refuse to construe the motion as a complaint. 3

For these reasons, the decision of the district court is affirmed.

AFFIRMED

2 

### (...continued)

claim was not barred as a tacit habeas petition because, although the plaintiff sought the

production of an exculpatory report to support his good time and parole eligibility

claims, “a judicial finding that some agency must deliver th[e] report to [the plaintiff]

would not itself establish some necessary element of those claims”).

3 

### The district court also stated that even assuming Mr. Terry had properly filed a

complaint, any FOIA claim would be time

‐ barred. However, because we agree with the

district court’s holding on other grounds, we do not reach the time

‐ bar issue. Nor do

we have occasion to determine the exhaustion of remedies question.