Opinion
No. C 03-4012-MWB
March 4, 2003
ORDER
The present "Application For Habeas Corpus Relief" was filed on February 11, 2003. In the "Application," petitioner Larry A. Michael seeks relief from denial of a deduction on his Iowa and Federal income taxes. Michael asserts that his "habeas corpus proceeding (evidentiary hearing) is authorized by Title 28, 1651." However, the cited provision does not provide for an evidentiary hearing or any other form of habeas corpus relief. Rather, 28 U.S.C. § 1651 provides only that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law," and that "[a]n alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction." 28 U.S.C. § 1651(a) (b).
The federal statutes providing for habeas corpus relief are, instead, 28 U.S.C. § 2241, 2254, and 2255. However, nowhere does the petitioner allege that he is "in custody" of any state or federal authority, or "committed for trial" before some court, as required to seek relief under any of these three habeas statutes. See 28 U.S.C. § 2241(c) ("The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody under or by color of the authority of the United States or is committed for trial before some court thereof. . . ."); 28 U.S.C. § 2254(a) (allowing federal courts to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" on certain limited grounds); 28 U.S.C. § 2255 (providing habeas corpus relief to "[a] prisoner in custody under sentence of a court established by Act of Congress"). Therefore, whatever relief the petitioner seeks, it is not habeas corpus relief. See, e.g., 28 U.S.C. § 2243 ("A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.").
Under the circumstances, rather than dismiss the "Application," the court deems it appropriate to allow the petitioner a reasonable opportunity to attempt to amend his "Application" to state a claim or claims upon which relief can be granted. However, the court also deems it appropriate to stay the respondents' obligation to file an answer or other responsive pleading until after the respondent files and serves an Amended Complaint.
THEREFORE,
1. The petitioner is not entitled to any habeas corpus relief and the respondents are not required to answer or otherwise plead in response to the "Application For Habeas Corpus Relief" filed on February 11, 2003.
2. The petitioner shall have to and including May 5, 2003, within which to file an Amended Complaint attempting to state a claim or claims upon which relief can be granted. Failure of the petitioner to file an Amended Complaint or to seek an extension of time to do so before this deadline expires shall be deemed abandonment of the action.
3. The respondents shall have to and including July 4, 2003, within which to move or plead in response to the Amended Complaint.
IT IS SO ORDERED.