Opinion
C/A No. 5:17-cv-00105-BHH-KDW
03-06-2017
Robert Mitchell, Petitioner, v. Warden McFadden, Respondent.
REPORT AND RECOMMENDATION
A Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 was submitted to the court by a state prison inmate appearing pro se. Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. §§ 1915(e), 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). I. Standard of Review
Under established local procedure in this judicial district, a careful review was made of the pro se Petition filed in this case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Anti-Terrorism and Effective Death Penalty Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
This court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se petition the petitioner's allegations are assumed to be true. De'Lonta v. Angelone, 330 F. 3d 630, 630 n.1 (4th Cir. 2003). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see Rule 1(b) of Rules Governing Section 2254 Cases in the United States District Courts (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254). Following the required initial review, it is recommended that the Petition submitted in this case be summarily dismissed. II. Factual and procedural background
A. Mitchell's prior litigation in the District of South Carolina
The undersigned does not necessarily include portions of a litigant's prior litigation history as background when conducting initial review of a new pleading. Here, Mitchell's recent litigation in this court is offered as context.
Prior to submitting the Petition now under review, Robert Mitchell ("Petitioner" or "Mitchell") had been a plaintiff in case number 4:16-2939-MBS-TER (Suttcliffe v. Cain), an action filed by eight state prisoners. The original Suttcliffe complaint contained allegations of fraud, conspiracy, and other claims that were themselves related to the dismissal of other cases—cases that the eight Suttcliffe plaintiffs had previously had filed in this District. See, e.g., Crawford v. S.C. Supreme Court, No. 0:16-1428-TMC; Sutcliffe v. S.C. Supreme Court, No. 0:16-992-TMC; Muqit v. McFadden, No. 8:14-3555-RBH.
On September 13, 2016, the Sutcliffe court denied the plaintiffs' request to proceed as a class action or as joint litigation. No. 4:16-2939, ECF No. 11. The Sutcliffe court instructed the Clerk of Court to "break out" and create separate cases for each of the eight plaintiffs. Id. Cases created by the break-out order in Sutcliffe, 4:16-2939-MBS, include Mitchell v. Cain, No. 4:16-3105-MBS; Cook v. Cain, No. 4:16-3101-MBS; Duren v. Cain, No. 4:16-3102-MBS; Bellamy v. Cain, No. 4:16-3104-MBS; and Chisolm v. Cain, 4:16-3106-MBS.
After having been provided several opportunities to submit pleadings setting out his individual claims in his broken-out case, 4:16-3105-MBS-TER, Mitchell did not do so. Rather, Mitchell and the other now-separated plaintiffs continued to file one ominibus document signed by each of them. In a December 8, 2016 order , the court cataloged Mitchell's numerous failures to follow the court's specific instructions and dismissed his claims pursuant to Federal Rule of Civil Procedure 41(b). 4:16-3105-MBS-TER, ECF No. 30. It does not appear that the dismissal of 4:16-3105 was appealed to the Fourth Circuit Court of Appeals.
B. Mitchell's Petition now under review
Petitioner began this case by submitting an almost blank, unsigned § 2254 habeas corpus petition form. ECF No. 1. He did not submit a filing fee or a motion for leave to proceed in forma pauperis at the time of filing. In the cover letter submitted with the initial Petition, Petitioner indicated he was aware the Petition was not in proper form, but he submitted the incomplete Petition to be assigned a case number and to have more time to complete his pleading. ECF No. 1-1. Following review of the submitted documentation, the undersigned issued an Order directing Petitioner to complete a § 2254 habeas-corpus petition form and to pay the filing fee or file a motion for leave to proceed in forma pauperis in order to bring this case into proper form. ECF No. 7.
In response, Petitioner submitted a signed a motion to proceed in forma pauperis, ECF No. 9, and a signed petition form., ECF No. 1-3. Rather than provide the pertinent information the § 2254 habeas corpus petition form required and that the court requires in order to consider the Petition, in large part Petitioner altered the form and provided other information. For example, Petitioner does indicate that he seeks to challenge a murder conviction from Charleston County. He does not, however, provide responses to the questions on the habeas corpus petition form seeking information about the date of the murder conviction challenged or about Petitioner's efforts to exhaust his state-court remedies relative to the murder conviction. ECF 1-3 at 1 through 5. Rather than provide the necessary information concerning the history of his challenged conviction, Petitioner lists the civil action numbers of several cases in this District, including some of the cases mentioned above. See id. at 1 (listing, without additional information, "4:16-cv-2939, 3101-3107."). Rather than provide information about exhaustion efforts that is required by the petition form, Petitioner uses that space to provide other information. Petitioner cites to "Case No. 4:16-cv-3807-JMC-TER," states that he "motion[s] to expand the scope and for inclusion," and asserts that "all documents filed in cases 4:16-cv-3807-JMC-TER, case 4:16-cv-3328-RBH-JDA are now deemed filed in this case." ECF No. 1-3 at 2, 5.
The correct citation is Case No. 4:16-cv-3807-RMG-TER.
Further, throughout the petition form, rather than answering the questions he was ordered to answer, Petitioner wrote a lengthy pleading over the form, crossed out the reference to 28 U.S.C. § 2254 in the heading, and wrote "§ 1983" at the conclusion of the heading. He also handwrote that he was submitting a "Writ of Error." In the caption area of the petition form, Petitioner crossed out the printed material designating the petitioner and the respondent and states that the prosecuting parties are the "parties listed in case 8:16-cv-3328 et al." and that the "defendants" in this case are "Judge Robert E. Hood et al. in expanded cases." ECF No. 1-3 at 1. Toward the end of his pleading, Petitioner states that "[w]rit of error is not filed within these cases immediately altering them to action filed under § 1983 not § 2254," id. at 32, but he does not indicate which cases are "these" cases. Id. Petitioner cites to Ross v. Blake, 136 S. Ct. 1850 (2016) (addressing exhaustion of administrative remedies relating to a § 1983 action), and urges that "there are no available state remedies due to machination, fraud, misrepresentation and the other claims made" in other cases filed in this court and referenced below. ECF No. 1-3 at 5.
To the extent Petitioner seeks a writ of error coram nobis, this court cannot entertain such a request because this court did not enter the challenged conviction and sentence. Thomas v. Cunningham, 335 F.2d 67, 69 (4th Cir. 1964) (finding "coram nobis cannot issue" to set aside state court convictions). To the extent Petitioner seeks to bring claims pursuant to 42 U.S.C. § 1983, he may not present such claims in a habeas action to avoid paying the $350 filing fee. See Altizer v. Dir., Va. Dep't of Corr., No. 7:12-CV-00360, 2012 WL 4619264, at *1 (W.D. Va. Oct. 1, 2012). If Petitioner desires to file a non-habeas civil action, he should obtain forms to do so from the Clerk of Court, P.O. Box 2317, Florence, South Carolina. 29503.
Throughout his pleading, Petitioner seeks to "expand the scope" and seeks "inclusion" of numerous lengthy pleadings and other documents submitted by himself and others in separate cases: 4:16-cv-3807-RMG-TER; 8:16-3328-RBH-JDA; 8:14-cv-3555-RBH-JDA; 4:16-cv-2939, 3101-3107; 0:16-cv-992. ECF No. 1-3 at 2-3. Additionally, Plaintiff indicates a desire to reinstate "[a]ll cases filed by Lawrence L. Crawford #300839 . . . pursuant to Rule 60(b)(3)(6)." ECF No. 1-3 at 2. Petitioner states that he is arguing the "same issues" as were raised in Case No. 8:14-cv-3555-RBH-JDA and Case No. 4:16-cv-2939; however, he does not list those issues or otherwise describe those issues other than to reference "religious and racial hatred due to the religious, political and social claims . . . ." ECF No. 1-3 at 3. Petitioner mentions a "(170) page document" that was filed in some other case or cases created "by Judge Cain's order" in Case No. 0:16-cv-992, asserting that "[a]ll those documents are now made a part of this case pursuant to expanding the scope seeking including, to include those documents filed in case 8:14-cv-355-RBH-JDA." ECF No. 1-3 at 5. Petitioner has not attached any of the pleadings that he seeks to incorporate to his Petition.
Petitioner also seems to assert that this case has a "connection to the Crawford case." ECF No. 1-3 at 3. Petitioner continues, "Lawrence L. Crawford is a Foreign Sovereign King, Khalifah, Imam and High Priest to The (4) Global Thrones of the Reestablished Global Theocratic State." Id. He cites to a state-court case (2013-CP-400-0084), in which he asserts default on such claim. Id. While less than clear, Petitioner seems to argue that Magistrate Judge Austin of this court conspired with a member of the Supreme Court of South Carolina to "negate" that case through "fraud and machination." ECF No. 1-3 at 4. Specifically, Petitioner mentions "Judge Jean Toal" [of the Supreme Court of South Carolina] and disagrees with the result of the state-court case. Id. Petitioner asserts that all judges of this court "must recuse and disqualify" themselves. Id. at 6. Petitioner continues: "We motion for transfer to the State of New Jersey to be heard and consolidated to all cases involving the King-Khalifah pursuant to 28 U.S.C. § 1404." Id. Petitioner provides no further information concerning any New Jersey cases.
Throughout the remaining 30-plus pages of text, Petitioner asserts numerous objections to this court's orders in the previously cited cases. Id. 7-36. As relief, Petitioner asks this court to vacate his conviction and sentence and he asks that his "name and DNA [be] removed from all derogatory files," that this case be transferred to New Jersey, and to be moved "to a pre-release camp pursuant to 28 U.S.C. § 1455(c)." Id. at 37. III. Discussion
The undersigned notes that at least one other case in the district is derived from a nearly identical petition as in the instant case and others appear to be similar in nature. See, e.g., Cook v. McFadden, No. 1:16-3853-RMG-SVH; Duren v. McFadden, No. 1:16-3756-MBS-SVH; Bellamy v. McFadden, No. 4:16-3807-RMG.
Because Petitioner opened this case with a partially completed § 2254 petition form, is "in custody pursuant to the judgment of a State court," and seeks to have his sentence and conviction vacated, the undersigned analyzes his Petition under § 2254. See Medberry v. Crosby, 351 F.3d 1049, 1059-60 (11th Cir. 2003) (state prisoner cannot use a § 2241 petition to avoid the restrictions under § 2254); see also 28 U.S.C. § 2254(a).
As an initial matter, liberally construed, Petitioner's numerous requests in his pleading "to expand the scope" and for "inclusion" of other persons' arguments from different cases indicates an intent to incorporate outside documents by reference—an action governed by Federal Rule of Civil Procedure 10(c). Petitioner's intent to incorporate these documents by reference cannot be fulfilled. Rule 10(c) does not permit the incorporation by reference of the contents of documents from separate cases. See, e.g., Muttathottil v. Mansfield, 381 F. App'x 454, 457 (5th Cir. 2010) (another litigant's crossclaim in a different case cannot be incorporated by reference) (quoting Texas Water Supply Corp. v. R. F. C., 204 F.2d 190, 196 (5th Cir. 1953) (no rule permits adoption of a crossclaim in a separate action in a different court by mere reference)); Gooden v. Crain, 255 F. App'x 858, 862 (5th Cir. 2007) (plaintiff could not incorporate claims from previously dismissed action into subsequently filed pleading); Muhammad v. Bethel-Muhammad, No. 11-0690-WS-B, 2012 WL 1854315, *3 n.5 (S.D. Ala. 2012) ("In short, the viability of the plaintiff's action is to be measured by his amended complaint, not by the avalanche of other filings with which he has inexcusably flooded the Court and the litigants over the course of two lawsuits."); Langella v. Cercone, No. 09-cv-312E, 2010 WL 2402940, *6 n.1 (W.D. Pa. 2010) (Rule 10(c) does not allow pleader to incorporate "arguments raised in another party's motion to dismiss"). Moreover, excessive incorporation by reference is disfavored. See Hinton v. TransUnion, LLC, 654 F. Supp. 2d 440, 446-47 (E.D. Va. 2009) (excessive incorporation by reference in a pleading creates unnecessary confusion); Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1254, 1261 (M.D. Ala. 2001) (a lawsuit should not be a "game of hide the peanut"); see also Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007) ("A habeas proceeding is not a fishing expedition."); 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure Civ. § 1326 (3d ed. 2004). Thus, the court will review the allegations contained on the four corners of the Petition now under review and will not consider any documents filed or arguments raised in any other case in connection with the initial review of Petitioner's pleading. It is not this court's responsibility to search another party's pleading to determine which, if any, of the arguments set forth in that pleading are applicable to a different litigant such as Petitioner. To advance a specific legal argument in his litigation Petitioner must take the time to fully set out such argument into his own pleading.
Rule 12 of the Rules Governing Habeas Corpus Cases under Section 2254 indicates that the Federal Rules of Civil Procedure are applicable in habeas corpus proceedings "to the extent that they are not inconsistent with any statutory provisions or these rules . . . ."
Furthermore, the apparently main (if not only) goal of the pleading under review is for Petitioner to express his disagreement with the results of several cases previously filed and considered in this District as well as the outcome of a state-court case filed and considered in Richland County, South Carolina. Petitioner's allegations about his displeasure, which comprise a large portion of his pleading, are not properly raised in this case because they are more appropriate for argument on appeal. Neither a subsequent § 1983 claim, a mandamus action, a writ of prohibition, nor a habeas corpus petition may be used as a substitute for an appeal when the litigant is unhappy with the result in prior litigation. See Holsey v. Bass, 519 F. Supp. 395, 413 (D. Md. 1981) (§ 1983 claim expressing unhappiness with the outcome of prior litigation is frivolous and not a substitute for appeal); see also In re Tollison, No. 16-1735, 2016 WL 6840075 (4th Cir. Nov. 21, 2016) (writ of prohibition not available to provide relief from civil judgment); In re Schumaker, 633 F. App'x 166 (4th Cir. 2016) (petition for writ of habeas corpus is not a substitute for appeal); In re Short, 21 F. App'x 147, at *1 (4th Cir. 2001) (petition for mandamus is not a substitute for appeal).
It does not appear that Petitioner has appealed dismissal of the other cases to which he now refers. --------
Finally, the Petition in this case is subject to summary dismissal because allegations contained on the face of the Petition are either irrelevant to his habeas action or are too conclusory and vague to satisfy Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts, which require a habeas petitioner to specify all the grounds for relief available to the petitioner and to state the facts supporting each ground. See Mayle v. Felix, 545 U.S. 644, 655-56 (2005) ("Habeas Corpus Rule 2(c) is more demanding" than the pleading requirement for ordinary civil proceedings and requires petitioners to "plead with particularity [] to assist the district court in determining whether the State should be ordered to 'show cause why the writ should not be granted.'"). "General averments that petitioner is restrained in violation of the Constitution and laws of the United States, or that he is illegally imprisoned without due process of law, is a statement of mere conclusions, and is insufficient to entitle applicant to a writ of habeas corpus, unless accompanied by specific allegations of fact showing it to be so." Singletary v. Marett, 22 F. Supp. 237, 238 (W.D.S.C. 1938) (citation omitted).
In this case, Petitioner failed to answer the questions on the petition form regarding the history of the Charleston County murder conviction and sentence he seeks to vacate. Additionally, he did not provide the court with the precise grounds for habeas relief that he seeks to pursue or with the facts to support such grounds. Instead, Petitioner used the space provided on the § 2254 form to type a complaint about other matters previously decided by this court, improperly attempting to incorporate earlier pleadings submitted by other persons in other cases into his present action. Because Petitioner has failed to comply with the court's order to complete the § 2254 petition form and to provide information sufficient to ascertain the grounds he is pursuing in his habeas petition, the Petition should be summarily dismissed. See Peyatt v. Holland, No. 85-6488, 1987 WL 35854 (4th Cir. Feb. 4, 1987) (affirming district court's dismissal of a habeas petition without prejudice for petitioner's failure to comply with an order directing completion of the petition as required by Rule 2(c)); Bryant v. Cartlege, No. 8:13-316-RMG, 2014 WL 108354, at *2 (D.S.C. Jan. 9, 2014) (dismissing habeas ground which was "impermissibly vague" under Rule 2(c)) (citing Mayle v. Felix, 545 U.S. at 649). IV. Recommendation
Accordingly, it is recommended that the Petition for a Writ of Habeas Corpus in this case be dismissed without prejudice.
IT IS SO RECOMMENDED. March 6, 2017
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge