Ismail v. Oelrich

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ZHIWAR ISMAIL,
Petitioner,
v.
OELRICH, #308 Police Officer,
Respondent.
Case No. 25-CV-4665 (ECT/JFD)
REPORT AND RECOMMENDATION
Petitioner Zhiwar Ismail was recently found guilty after a jury trial in state court on
one count of possession of a firearm by an ineligible person. See State of Minnesota v.
Ismail, No. 14-CR-25-610 (Minn. Dist. Ct.). Mr. Ismail has not yet been sentenced. As of
today, Mr. Ismail remains in custody at the Clay County Jail awaiting that sentencing.
Mr. Ismail has filed a petition for a writ of habeas corpus alleging that he has been
“deprived of [his] liberty & rights.” Petition at 6 [Dkt. No. 1]. The habeas petition is not
long on particulars, but Mr. Ismail appears to believe that there was a lack of probable
cause for the arrest that led to his conviction, that the search that uncovered the unlawful
weapon was unlawful, and that he was mistreated by the arresting officer. Mr. Ismail asks
for monetary damages in compensation. See id. at 7.
The habeas petition filed by Mr. Ismail is now before the Court for preliminary
review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
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District Courts.1 After review, this Court concludes that the habeas petition should be
summarily denied.
There are multiple problems with Mr. Ismail’s habeas petition. The first is that Mr.
Ismail is seeking only monetary damages for the allegedly unlawful arrest and detention.
But “[h]abeas corpus is for getting out of detention sooner, not for seeking compensation
from the government for having wrongfully been in detention.” Marcum v. Olmsted County
Health, No. 24-CV-2655 (JWB/JFD), 2024 WL 4480248, at *1 (D. Minn. July 10, 2024)
(citing Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1995) (per curiam)). A prisoner
may use a habeas corpus petition as a means of challenging the lawfulness of detention,
but not for procuring monetary damages.
Second, even if Mr. Ismail were requesting the appropriate remedy (release from
custody), it would be too soon for him to seek federal habeas corpus relief. Although 28
U.S.C. § 2241 does not include an express exhaustion requirement, federal courts have
consistently required that state prisoners, even those not held pursuant to a state-court
judgment, first present their claims to the state courts (including state appellate courts)
before seeking habeas relief in federal court. See, e.g., Abdikarim v. State, No. 24-CV-2013
(NEB/LIB), 2024 WL 3557772, at 1-2 (D. Minn. June 17, 2024) (collecting cases). And
after judgment is entered in Mr. Ismail’s criminal case (as appears imminent), that
judicially imposed exhaustion requirement will become statutorily mandated. See 28
1 Because Judgment has not yet been entered in Mr. Ismail’s criminal case, his habeas
petition is not brought pursuant to 28 U.S.C. § 2254. Nevertheless, the Rules Governing
Section 2254 Cases may be applied to his petition. See Rule 1(b).
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U.S.C. § 2254(b). To the extent that Ismail seeks to challenge his conviction, he must avail
himself of the state courts first.
Third, even if Mr. Ismail’s habeas petition were construed as a non-habeas civil
pleading seeking non-habeas civil relief, see Spencer v. Haynes, 774 F.3d 467, 471 (8th
Cir. 2014), this case would still be subject to summary dismissal. Mr. Ismail’s allegations
are entirely conclusory, and a complaint cannot be founded on nothing but conclusory
allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Because Mr. Ismail is a
prisoner, his complaint (if this were a complaint) would be subject to preliminary review
under 28 U.S.C. § 1915A and would undoubtedly be dismissed under that provision for
failure to state a claim on which relief may be granted.
Finally, even if Mr. Ismail had pleaded a claim on which relief may be granted, there
would still be a problem—on the very same day he filed this habeas action, Mr. Ismail also
filed a lawsuit in this District against the same officer named as the respondent here. See
Ismail v. Oelrich, No. 25-CV-4663 (JWB/DLM) (D. Minn filed Dec. 16, 2025). Any non-
habeas claims that Mr. Ismail might have available to him against the officer can be
litigated in that proceeding, with no need for a duplicative parallel lawsuit against the same
officer. See Fed. R. Civ. P. 18(a).
Accordingly, it is recommended that Mr. Ismail’s habeas petition be denied. Only
two further matters merit brief comment. First, because it is recommended that the habeas
petition be summarily denied, it is further recommended that Mr. Ismail’s pending
application to proceed in forma pauperis be denied as well. See Kruger, 77 F.3d
at 1074 n.3. Second, an appeal cannot be taken from “the final order in a habeas corpus
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proceeding in which the detention complained of arises out of process issued by a State
court” unless the petitioner is granted a certificate of appealability (“COA”). 28 U.S.C.
§ 2253(c)(1)(A); see also Evans v. Circuit Ct. of Cook County, 569 F.3d 665, 666 (7th Cir.
2009); (holding that state detainees not yet held pursuant to judgment must procure a COA
to appeal a final habeas order). This Court does not believe that “jurists of reason would
find it debatable whether the district court was correct in its procedural ruling” if this matter
were to be dismissed on the grounds recommended above. Slack v. McDaniel, 529 U.S.
473, 484 (2000). It is therefore recommended that Mr. Ismail not be granted a COA.
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY RECOMMENDED THAT:
1. 	The petition for a writ of habeas corpus of petitioner Zhiwar Ismail [Dkt.
No. 1] be DENIED.
2. 	Ismail’s application to proceed in forma pauperis [Dkt. No. 2] be DENIED.
3. 	No certificate of appealability be issued.
Dated: December 17, 2025
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge
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Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. See Local
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set
forth in Local Rule 72.2(c).
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