Opinion
Civil Action No. 1:05cv2, Criminal Action No. 1:03cr39.
September 19, 2005.
REPORT AND RECOMMENDATION/OPINION
I. INTRODUCTION
On January 3, 2005, Darlene M. Nelson, on behalf of her boyfriend, Deon Brewer, an inmate at FCI-Elkton, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. According to Ms. Nelson, she did not have enough time to obtain Brewer's signature, so she signed and filed the § 2255 motion on Brewer's behalf.
By Order entered on June 6, 2005, the Court ordered the respondent to respond to the § 2255 motion, focusing on the issue of the next friend status of Ms. Nelson. On June 27, 2005, the respondent filed a Response to the Issue of Ms. Darlene Nelson Filing a Motion Pursuant to 28 U.S.C. § 2255 as "Next Friend" on Behalf of Petitioner Deon Brewer. On August 12, 2005, Brewer filed a Reply to Government's Response.
This matter, which is pending before me for initial review and report and recommendation pursuant to LR PL P 83.15, is ripe for review. II. BACKGROUND A. Conviction and Sentence
On August 25, 2003, Brewer entered a guilty plea to aiding and abetting the distribution of cocaine base within 1,000 feet of a playground in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860 and 18 U.S.C. § 2. The parties stipulated "that the relevant conduct of the defendant is not less than 20 grams but no more than 35 grams." The parties also stipulated that the offense occurred within 1,000 feet of a protected location and an increase was applicable pursuant to U.S.S.G. § 2D1.2. Additionally, the plea agreement contained a waiver of Brewer's right to appeal and collaterally attack his sentence if his sentence was based on a guideline level of 27 or less.
On January 5, 2004, the Court sentenced Brewer to 87 months imprisonment to run consecutively to the 12 month plus 1 day sentence imposed in case no. 1:92cr207-02. The Judgment and Commitment Order was entered on January 8, 2004. Brewer did not appeal his sentence.
B. Parties' Contentions Brewer's Contentions
Brewer asserts that he was provided ineffective assistance of counsel at sentencing because his attorney failed to object to the presentence report (PSR). According to Brewer, while the PSR recommended that he was responsible for 20-35 grams of cocaine base, it failed to substantiate the drug quantity. He further asserts the stipulation in his plea agreement was invalid and could not be used to determine his drug amount because "the stipulation did not state whether he was responsible for 20-35 grams of heroin, cocaine, marijuana, etc."
Brewer also asserts that his attorney was ineffective for failing to object to the PSR's recommendation that his sentence be increased by 2 points pursuant to U.S.S.G. § 2D1.2(a)(1) because "the amount of cocaine base directly involved in a protected location was substantially lower than the total amount of cocaine base involved in the offense."
Brewer further argues that his claims of ineffective assistance of counsel are not barred by the waiver in his plea agreement.
With regard to the next friend issue, Brewer states that the motion filed on July 3, 2005 by Ms. Nelson was what he wanted filed. He further asserts that his brother, Mateen Abdul-Aziz, an inmate at FCI-Gilmer, completed the § 2255 motion for him because he has limited knowledge of the law, but Abul-Aziz could not send the § 2255 motion to him because the Bureau of Prisons had not authorized communications between them. Thus, Abdul-Aziz sent the motion to Ms. Nelson so she could timely file it on Brewer's behalf. Brewer asserts that he did not want a next friend motion filed, he just wanted his motion to be timely filed.
However, Brewer also states in his Reply that he was "deeply involved in the § 2255 motion from the very beginning; he was aware of the issues that it raised; and he epoused [sic]the claims."
Government's Contentions
The Government contends that Ms. Nelson fails to satisfy the requirements of Whitmore v. Arkansas, 495 U.S. 149 (1990) and, thus, the motion should be dismissed for failure to be signed and verified by the named petitioner.
III. ANALYSIS
Rule 2(c) of the Rules Governing § 2255 cases in the United States District Court provides that the motion must be signed under the penalty of perjury by the petitioner or by a person authorized to sign it. The Advisory Committee notes to Rule 2 provide that "the Committee envisions that the courts will apply third party or `next-friend' standing analysis in deciding whether the signer was actually authorized to sign the petition on behalf of the movant." Ms. Nelson made no prior request to the Court for "next friend" status.
Pursuant to Whitmore v. Arkansas, 495 U.S. 149 (1990), "next-friend" standing in a habeas proceeding is not automatically given to whomever seeks to pursue an action on behalf of another. To obtain next friend standing, two requirements must be met:
First, a "next friend" must provide an adequate explanation — such as inaccessability, mental incompetenece, 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.Id. at 163 (internal citations omitted).
"The burden is on the `next friend' clearly to establish the propriety of his status and thereby justify the jurisdiction of the court." Id.
Next friend applications are limited to "incidents of infancy, incompetency, or lack of time." Evans v. Bennett, 467 F.Supp. 1108, 1110 (S.D. Ala. 1979). "[W]hen the application for habeas corpus filed by a would be `next-friend' does not set forth an adequate reason or explanation of the necessity for resort to the `next-friend' device, the Court is without jurisdiction to consider the petition." Id.
As noted by the respondent, Ms. Nelson fails to satisfy the requirements of Whitmore. Even though Ms. Nelson is Brewer's girlfriend, and it could be found that she has a significant relationship with Brewer, she has not shown that she meets the best interests of Brewer. Further, she has failed to show that Brewer was unable to proceed on his own behalf. Specifically, Brewer has not been declared mentally incompetent, he is not an infant, and it has not been demonstrated that Brewer suffers from some disability. Thus, Ms. Nelson does not qualify as a next friend and the Court has no jurisdiction over the motion. See Tate v. United States, 72 Fed.Appx. 265, 266-267, 2003 WL 21580425, **1 (6th Cir. 2003).
IV. RECOMMENDATION
For the reasons stated herein, it is accordingly recommended that the Court enter an Order denying the § 2255 motion filed by Ms. Nelson because she does not have next friend standing, and the Court has no jurisdiction over the motion.
Any party may file within ten (10) days after being served with a copy of this Recommendation with the Clerk of the Court written objections identifying the portions of the Recommendation to which objections are made, and the basis for such objections. A copy of such objections should also be submitted to the Honorable Irene M. Keeley, United States District Chief Judge. Failure to timely file objections to the Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Recommendation. 28 U.S.C. § 636(b)(1);United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk of Court is directed to mail a copy of this Report and Recommendation/Opinion to Brewer and the United States Attorney for the Northern District of West Virginia.