Opinion
C. A. 1:23-6962-DCC-SVH
04-25-2024
Fred Joseph Richardson, Jr., Petitioner, v. Warden Kenneth Nelson, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
This matter is before the court for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 concerning Fred Joseph Richardson, Jr. (“Richardson”), who is currently incarcerated at Broad River Correctional Institution. Pursuant to 28 U.S.C. § 636(b)(i)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions and submit findings and recommendations to the district judge. The writ has not been signed by Richardson, but instead by “Tradon Drayton [(“Drayton”)] in lieu of Fred Richardson.” [ECF No. 1 at ¶ 5, see also id. (“My name is Tradon Marquez Drayton, and I am the nephew of Mr. Richardson. The institution where he currently resides has issues with mail being delivered to the inmate and my uncle is mentally challenged to the point where he gets delusional.”)].
On February 1, 2024, the court issued a proper form order, directing Richardson and/or Drayton to provide certain information, including “any information relevant to whether Mr. Drayton should be permitted to proceed with the petition as Next Friend of Petitioner .... Relevant to this consideration is establishing his mental competence or incompetence, as appropriate.” [ECF No. 9 at 3]. In response, Drayton submitted an affidavit, stating in part that “from birth [Richardson] has had mental health issues such as being mentally retarded and not understanding right from wrong . . . My uncle doesn't have a clue what[']s going on [a]s he was just recently released from the hospital.” [ECF No. 11 ¶¶ 5-6]. Additionally, Drayton provided a “request for notice of insanity defense or plead of guilty but mentally ill” submitted by senior assistant solicitor on February 16, 2007, concerning the State of South Carolina v. Fred Richardson. Id. at 2-4. However, the undersigned notes that in the writ submitted to the court, Drayton informed the court that Richardson pled guilty, and did not submit an insanity plea, as to the charge at issue. [ECF No. 1 at 1-2].
The law expressly permits a “next friend” to file a 28 U.S.C. § 2255 motion on behalf of a petitioner who is unable to do so himself. See 28 U.S.C. § 2242 (“Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.”). The Supreme Court has said:
“[N]ext friend” standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another. Decisions applying the habeas corpus statute have adhered to at
least two firmly rooted prerequisites for “next friend” standing. First, a “next friend” must provide an adequate explanation- such as inaccessibility, mental incompetence, or other disability- why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest. The burden is on the “next friend” clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990) (citations omitted). Although the Supreme Court's opinion in Whitmore did not expressly find that there must be a “significant relationship” between the next friend and the real party in interest, the Fourth Circuit subsequently concluded that there must be such a relationship. See Hamdi v. Rumsfeld, 294 F.3d 598, 604 (4th Cir. 2002)(“[H]aving considered the relevant case law and the arguments of counsel, we conclude that the significant-relationship inquiry is in fact an important requirement for next friend standing”). Additionally, the Fourth Circuit has instructed that “[t]he question of next friend standing is not merely ‘technical,' . . . [r]ather, it is jurisdictional and thus fundamental.” Id. at 607.
Applying such test, here, the court finds it lacks jurisdiction over this petition. Tradon has not shown he has standing as “next friend,” because he has not shown, for example, that he has ever met Richardson or that he has a close relationship with Richardson, and instead he has submitted evidence that Richardson has no knowledge of Tradon's legal efforts on his behalf. Such a situation stands in contrast to one where, for example, “Weirback was clearly operating with the consent of and in the best interests of the petitioner, and expediency may have required that Weirback sign and mail the complaint.” Morris v. United States, 399 F.Supp. 720, 722 (E.D. Va. 1975). Although Tradon has stated he is related to Richardson, this alone appears insufficient to establish a significant relationship. See, e.g., Davis v. Austin, 492 F.Supp. 273, 275-276 (ND Ga. 1980) (first cousin of prisoner denied “next friend” standing where he had not visited the prisoner “in over a year and has had only two contacts with him during that period”). Additionally, although Richardson's mental incapacity is asserted as a basis for next-friend filing, such assertion is conclusory and is not supported by any facts demonstrating that Petitioner lacked capacity, particularly at the time his § 2255 petition was filed. That his attorney in 2007 filed a notice of insanity defense is insufficient, particularly where Richardson did not use such a defense and instead pled guilty to the charges. See, e.g., Wilson v. Lane, 870 F.2d 1250, 1253 (7th Cir. 1989) (“A next-friend applicant, among other things, must therefore explain why the detainee did not sign and verify the petition. If the next-friend cannot do so, the court is without jurisdiction to consider the petition.”) (citations omitted)); Williams v. Boone, 166 F.3d 1223 (10th Cir. 1999 (same, collecting cases).
In light of the foregoing caselaw, the undersigned finds Tradon has failed to carry his burden to “clearly [] establish the propriety of his status and thereby justify the jurisdiction of the court.” Whitmore, 495 U.S. at 164. Accordingly, the undersigned recommends the court dismisses the petition without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).