Summary
warning against "home-brewed" filings in cases which could be considered § 2254 petitions
Summary of this case from Bradley v. AdamsOpinion
Case No. CV416-119
05-26-2016
GREG DAVIS, Petitioner, v. SAMUEL S. OLENS; JUDGE Attorney General; MICHAEL L. KARPF, Respondents.
ORDER
Greg Davis has filed a "Motion Under Rule 60(b)(3) Fraud." Doc. 1. The Clerk docketed it as a 28 U.S.C. § 2254 petition. The "motion" has nothing to do with anything that's occurred in this Court. Instead, it attacks a 1996 state criminal court "competency judgment" against Davis. The Court accepts the Clerk's designation for docket-keeping purposes but abstains from judicially characterizing the filing as a § 2254 petition until Davis clarifies what he seeks.
The federal courts have long made available to jails and prisons specific forms for filing habeas and civil rights cases. In Williams v. Freesemann, 2015 WL 6798946 (S.D. Ga. Oct. 15, 2015), this Court noted that some inmate-litigants bypass those forms in favor of "home-brewed" filings. Adverse factors can motivate that effort. The Court's forms force inmates to answer questions aimed at capturing things like 28 U.S.C. § 1915(g) strikes and repeat (e.g., successive writ) habeas filings. See, e.g., Bright v. Corizon Health Corp., 2015 WL 9257155 at * 1 (S.D. Ga. Dec. 18, 2015) ("Bright's incentive to omit his prior case information is strong because of the § 1915(g) three-strike bar."). "Home-brewers" typically omit those prophylactic questions from their filings.
After Williams filed a "Petition of Truth" under 42 U.S.C. § 1983, the Court reaffirmed that it would reject home-brews, including "any attempt by an inmate to advance a habeas claim using a 'Trojan Horse' cover claim under § 1983 or, as is evident here, a facially absurd claim premised on a statute arbitrarily plucked out of the federal code." Williams, 2015 WL 6798946 at * 1. It therefore directed the Clerk to send Williams a set of § 1983 and habeas forms and further directed that:
[w]ithin 30 days after the Clerk serves Williams with a copy of this Order and those forms, he must re-file whatever it is he seeks to do with this case. If he wants to sue someone for damages, he should use the § 1983 form and associated IFP forms. If he seeks only
relief from his conviction (and no money damages), then he should use the § 2254 form and associated IFP motion. What he cannot do is sluff both into a home-brewed "Petition of Truth," which will be dismissed outright (but not before directing his Prison Custodian to pay from Williams' account a $5 filing fee to the Clerk) if he fails to comply with these directions.Williams, 2015 WL 6798946 at * 2 (footnote omitted).
As in Williams, Davis also has filed a "home-brewed" form bearing a facially frivolous request for relief, and also moves for leave to proceed in forma pauperis (IFP). Doc. 2. As it did in Williams, the Court DEFERS ruling on his IFP motion (doc. 2) and DIRECTS the Clerk to send him: (1) a 42 U.S.C. § 1983 form complaint; and (2) a 28 U.S.C. § 2254 form petition, both with associated IFP forms. There are separate filing fees involved in those cases ($5 for § 2254; $350 for § 1983), and separate consequences that accompany both actions.
This Court's § 1983 complaint form, which is availed to all prisons and jails, see http://www.gasd.uscourts.gov/pdf/prisonerl983.pdf, compels inmates to disclose prior lawsuits. Id. at 1-2. That data is necessary to enforce the "Three Strikes" rule recently illuminated in Owens v. Morales, 2015 WL 5040245 at * 1 (S.D. Ga. Aug. 25, 2015). See Boney v. Hickey, 2014 WL 4103918 at * 4-5 (S.D. Fla. Aug. 15, 2014) (collecting cases that discuss what constitutes a 28 U.S.C. § 1915(g) strike, three of which can lead to a substantial curtailment on an inmate's ability to proceed IFP).
Within 30 days after the Clerk serves Davis with a copy of this Order and those forms, he must re-file whatever it is he seeks to do with this case. If he wants to sue someone for damages, he should use the § 1983 form and associated IFP forms. If he seeks only relief from his conviction (and no money damages), then he should use the § 2254 form and associated IFP motion. What he cannot do is rely on his home-brewed "Rule 60" motion.
Since the Court is not acting on his present filing, no "Castro" warning is required. See Castro v. United States, 540 U.S. 375, 382-83 (2003) (court that wishes to recharacterize pro se litigant's pleading as first 28 U.S.C. § 2255 motion must (1) notify litigant of court's intent, (2) warn litigant that recharacterization means that subsequent § 2255 motion will be subject to restrictions on "second or successive" motions, and (3) give litigant opportunity to withdraw motion or to amend it to include all § 2255 claims). Castro applies to any filing that in substance is a § 2254 petition -- if reached on the merits. Compare Smith v. Hobbs, 490 F. App'x 833, 833 (8th Cir. 2012) (state prisoner was entitled to proper notice, warnings, and opportunity to withdraw his pleadings before his pro se § 1983 action challenging his sentence was recharacterized as habeas petition); with Jones v. O'Neal, 2012 WL 6084650 at * 1 (S.D. Ga. Dec. 6, 2012) (no Castro warning needed since petitioner had failed to exhaust state remedies, thus warranting dismissal without prejudice); cited in Alexander v. Georgia, 2015 WL 2255130 at * 1 n. 1 (S.D. Ga. May 15, 2015) (no Castro warning needed "because the Court would not be reaching his petition on the merits, only on procedural grounds."). --------
SO ORDERED, this 26th day of May, 2015.
/s/_________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA