Opinion
CIVIL ACTION NO. 1:02-CV-220-C
May 29, 2003
ORDER
On November 6, 2002, Barney Joe Donalson and Barbara Donalson filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 as "next friend" petitioners "on behalf of their mentally disabled son, Barney Joe Donalson, Jr., to challenge the execution of [his] federal sentence and seek enforcement of [his] federal plea agreement.' The Donalsons did not seek to proceed in forma pauperis but paid the $5.00 filing fee, The Respondents have not filed an answer.
Barney Joe Donalson, Jr. is in the custody of the Texas Department of Criminal Justice — Institutional Division ("TDCJ-ID") pursuant to state court convictions and sentences imposed in 1986 for the felony offenses of arson, retaliation, and attempted escape, He is currently incarcerated in the TDCJ-ID French Robertson Unit in Abilene, Texas, which is located in the Abilene Division of the United States District Court for the Northern District of Texas. The Donalsons do not, however, challenge these state court convictions; rather, they challenge the execution of Barney Joe Donalson, Jr.'s conviction and sentence in Criminal Action No. 4:93-CR-027 in the United States District Court for the Southern District of Texas — Houston Division. They contend that Donalson Jr. is in constructive custody of the United States because the U.S. Marshal has filed a detainer with TDCJ-ID. The Donalsons contend that their "next friend" status is justified because Donalson Jr. has authorized the filing of the petition, he is probably incompetent, and he is incarcerated under adverse conditions. They allege that the complaint is not barred by the statute of limitations and exhaustion is impossible because Donalson Jr. is not yet incarcerated in the United States Bureau of Prisons. Finally, the Donalsons contend that Donalson Jr.'s sentence in Criminal Action No. 4:93-CR-027 is not being executed properly because the United States expects Donalson Jr. to begin serving his federal sentence when he is released to mandatory supervision by the State of Texas even though his plea agreement stated that
the defendant's service of any sentence imposed by the Court in this case shall commence immediately upon the expiration of the Texas state sentences currently assessed against the defendant, or immediately upon the defendant's parole from the Texas Department of Criminal Justice — Institutional Division, whichever occurs earlier.
The Donalsons argue that because the agreement did not specifically state that his sentence would begin when he was released to "parole or mandatory supervision," Donalson Jr. should not begin serving his federal sentence when he is released from TDCJ-ID to mandatory supervision.
"NEXT FRIEND" STATUS
A petition for writ of habeas corpus must be "in writing signed and verified by the parson for whose relief it is intended or by someone acting in his behalf." 28 U.S.C. § 2242. "The words `or by someone acting in his behalf were added to the statute to be consistent with the actual practice of the courts" in occasionally allowing Weber v. Garza, 570 F.2d 511, 513 (5th Cir. 1978). The United States Court of Appeals for the Fifth Circuit has determined that three principles control the determination of when a "next friend" petition is appropriate:
First, the authority of one person to apply for a writ of habeas corpus for the release of another will be recognized only when the application for the writ establishes some reason or explanation, satisfactory to the court, showing: (1) why the detained person did not sign and verify the petition and (2) the relationship and interest of the would be "next friend." Second, individuals not licensed to practice law by the state may not use the "next friend" device as an artifice for the unauthorized practice of law. The "next friend" expedient, which on occasion may be essential to the efficacy of the "Great Writ," may not be so abused as to unleash on the courts a quasi-professional group of lay writ-writers who would seek to right all wrongs, both real and imagined. Third, when the application for habeas corpus filed by a "next friend" does not set forth an adequate reason or explanation of the necessity for resort to the "next Mend" device, the court is without jurisdiction to consider the petition.Id. at 513-514.
The Donalsons contend that Donalson Jr. expressly consented to their acting as his "next friend" in filing this petition and that he has given his "power of attorney" to his mother Barbara Donalson. They also argue that their "next friend" status is warranted because of their son's "probable incompetency" and his incarceration under cruel and unusual conditions.
The mere fact that Donalson Jr. has given his mother a "power of attorney" is not sufficient to justify "next friend" status. Id. at 514. As for the allegation that Donalson Jr. consented to his parents filing the petition on his behalf; that also is insufficient to warrant "next friend" status. "`Next friend' petitions are permitted only if it is clearly demonstrated that the individual is unable to seek relief on his own behalf or is mentally incompetent to do so." Lovelace v. Lynaugh, 809 F.2d 1136, 1137 (5th Cir. 1987).
The Donalsons also argue that their son is "probably incompetent" and list various hospitals and prison units where he has allegedly been treated for a long history of mental illness. The list begins with psychiatric treatment he received in 1978 at the age of 10 and ends with treatment he received at the TDCJ-ID Skyview Unit in 1994 and 1995. There is absolutely no evidence in the record to indicate that Donalson Jr. is currently so mentally incompetent that he cannot file his own petition. Indeed, the fact that he discussed this petition with his parents and authorized them to file it on his behalf seems to indicate otherwise.
Moreover, the Court takes judicial notice of the fact that Barney Joe Donalson, Jr. aka Damon Henry Downs, TDCJ-ID No. 423754, is an experienced pro se litigator. He has filed numerous pro se motions in his Criminal Action No. 4:93-CR-027, including two motions to vacate, set aside, or correct judgement and appeals from the denial of those motions. See Damon Downs v. United States of America, No. 4:94-CV-1579 (S.D. Tex.1994); Damon Downs v. United States of America, No. 4:96-CV-0515(S.D. Tex. 1996). Furthermore, the Court notes that on January 13, 2003, Donalson Jr. filed an appeal from the denial of his motion to correct an error in the judgment in Criminal Action No. 4:93-CR-027 in the United States Court of Appeals for the Fifth Circuit and it was assigned USCA No. 03-20151. In USCA No. 03-20151, Donalson Jr. filed a motion for the appointment of counsel on February 28, 2003; a brief on March 6, 2003; and a reply brief on May 12, 2003. Accordingly, the Court finds that Barney Joe Donalson and Barbara Donalson have failed to demonstrate that their son Barney Joe Donalson Jr. is so mentally incapacitated that he cannot file his own petition for writ of habeas corpus,
Finally, the Donalsons argue that they should be allowed to file the petition as "next friends" because their son is incarcerated in administrative segregation under cruel and unusual conditions. As previously noted, Donalson Jr.'s incarceration in administrative segregation has not prevented him from filing other pro se pleadings and this argument is without merit
For these reasons, Barney Joe Donalson and Barbara Donalson have failed to clearly demonstrate that Donalson Jr. "is unable to seek relief on his own behalf or is mentally incompetent to do so." Lovelace v. Lynaugh. 809 F.2d 1136, 1137 (5th Cir 1987). Hence, this Court is without jurisdiction to consider the petition and it should be dismissed without prejudice. Weber v. Garza, 570 F.2d at 514.
SANCTIONS
In the course of conducting a preliminary examination of the instant petition in accordance with Rule 4 of the Rules Governing Section 2255 Proceedings For the United States District Courts, this Court discovered that Barney Joe Donalson Jr. has been barred from filing civil actions. By Order dated June 27, 1995, in Appeal No. 95-50282, the United States Court of Appeals for the Fifth Circuit ordered that
Downs [ aka Barney Joe Donalson Jr.] may file no initial pleading in this court or in any court subject to the jurisdiction of this court, except with the advance written permission of a judge of the forum court. Before filing an appeal or other action in this court, Downs shall submit to the clerk of this court a request for permission to file, together with the document that he proposes to file, which the clerk shall direct to an active judge of this court. In requesting the required permission in this court or in any court in this circuit, Downs shall inform the court of the bar stated herein.
(emphasis added).
Then, by Order dated January 21, 1997, in Appeal No. 95-50453, the Fifth Circuit noted that "Downs [ aka Barney Joe Donalson Jr.] has a long history of harassing or threatening litigation, and he has been repeatedly warned that such conduct is subject to sanction." The Fifth Circuit then ordered that
Downs is prohibited from making any communications not related to litigation with the United States District Court for the Western District of Texas or its personnel; Downs may file no pleading in the United States District Court for the Western District of Texas that is accompanied by applications for leave to file or proceed in forma pauperis (IFP), except for those pleadings that specifically allege constitutional deprivation by reason of physical harm or threats to petitioner's person; if a cause of actions filling within that exception is alleged. Downs must obtain permission from the court to file the suit IFP, and it will be bandied according to the procedures routinely followed pursuant to 28 U.S.C. § 1915(d). . . . In regard to [the Western District of Texas] and any other court subject to the jurisdiction of this court (excluding the Western District of Texas), the sanctions we imposed on June 27, 1995, in Cause No. 95-50282 remain in effect,
(footnotes omitted).
On September 15, 1999, Barney Joe Donalson Jr.'s mother, Shirley Minter, filed a "next friend" petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Southern District of Texas, Houston Division in Cause No. 4:99-CV-3087. By Order dated October 18, 1999, the District Court noted that Donalson Jr., "under the name Damon Downs, has a long history of abusing the federal courts." Although the prior sanctions had been imposed in cases filed or construed to be filed under 42 U.S.C. § 1983, the Southern District of Texas District Court noted the sanctions imposed by the Fifth Circuit in Appeal No. 95-50282 and found that Donalson Jr. had failed to seek or obtain advance written permission to file the § 2241 petition. After finding that Donalson Jr. had filed "eight post-judgment motions seeking to alter, amend, or vacate the judgment of conviction" in Criminal Action No. 4;93-CR-027, the District Court dismissed the petition as "improvidently granted." Barney Joe Donalson Jr.'s mother was clearly advised of the sanction and requirement to obtain permission before filing the instant petition for habeas relief.
Accordingly, the Donalsons are admonished that the sanction requiring their son to obtain permission prior to filing any pleading in a court within the jurisdiction of the Fifth Circuit Court of Appeals applies to their attempts to file pleadings as `"next friends" and they are required to notify any court of the sanction in their future attempts to file pleadings as `"next friends,"
CONCLUSION
For these reasons, the Court finds that the Donalsons' request to file the petition as "next friends" should be denied and the instant petition for writ of habeas corpus should be dismissed without prejudice for want of jurisdiction.
SO ORDERED.
JUDGMENT
For the reasons stated in the Court's Order of even date,IT IS ORDERED, ADJUDGED, AND DECREED that the above-styled and-numbered cause is dismissed without prejudice.