NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
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
Plaintiff‐Appellee, District Court for the Central
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.
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.
