Opinion
No. 5:19-cv-00504-TES-CHW
07-20-2020
TEZ BEN EL, Petitioner, v. OFFICE OF THE STATE COURT ADMINISTRATOR, et al., Respondents.
ORDER & RECOMMENDATION OF DISMISSAL
Petitioner Tez Ben El filed two documents, which were docketed in this Court as petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Pet. for Writ of Habeas Corpus, ECF No. 1; Am. Pet. for Writ of Habeas Corpus, ECF No. 4. Petitioner did not, however, use the required § 2254 form for either of these filings. See id. Moreover, Petitioner filed two motions for leave to proceed in forma pauperis in this action, but neither of these motions was on the proper form. See Mot. for Leave to Proceed In Forma Pauperis, ECF Nos. 2 & 5. Thus, Petitioner was ordered to refile his petition and motion to proceed in forma pauperis on the proper forms. Order, ECF No. 6.
Thereafter, Petitioner failed to file his recast petition, pay the filing fee, move for leave to proceed in forma pauperis, or otherwise respond to the previous order within the allotted time. As a result, an order was entered directing Petitioner to show cause why this case should not be dismissed for failure to comply with the previous order. Order, ECF No. 7. Petitioner again did not file a recast petition on the proper form or otherwise respond to the show cause order to explain why this case should not be dismissed based on his failure to recast his petition. Thus, it was recommended that the petition in this case be dismissed without prejudice based on Petitioner's failure to comply with previous orders or otherwise prosecute this action. Order, ECF No. 10.
Petitioner has now filed an objection to the order, Objection, ECF No. 12, and a recast petition on a 28 U.S.C. § 2241 habeas corpus form. Am. Pet. for Writ of Habeas Corpus, ECF No. 11. Insofar as Petitioner has, at long last, filed a petition on a habeas corpus form as directed, the recommendation to dismiss based on Petitioner's failure to comply with the order to recast (ECF No. 10) is hereby WITHDRAWN and this order and recommendation is entered in its place. Nevertheless, for the reasons discussed below, it is again RECOMMENDED that Petitioner's petition for a writ of habeas corpus be DISMISSED WITHOUT PREJUDICE.
I. Preliminary Review in Habeas Corpus Cases
Rule 4 of the Rules Governing § 2254 Cases requires district courts to dismiss habeas corpus petitions without ordering the State to respond "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Paez v. Sec'y, Fla. Dep't of Corrs., 947 F.3d 649 (11th Cir. 2020). This preliminary review calls on a district court to screen the petition prior to service and dismiss the petition, sua sponte, upon a determination that it contains no meritorious claim for relief. See Rules Governing § 2254 Cases, Rule 4 advisory committee notes (providing that "it is the duty of the court to screen out frivolous applications"). This procedure serves to "eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Id.
Petitioner filed his petition on a § 2241 form, rather than a § 2254 form. Regardless of whether the petition is considered under § 2241 or § 2254, the Rules Governing § 2254 Cases apply in either situation. See Rule 1(b) of the Rules Governing § 2254 cases.
To survive a Rule 4 review, a habeas petition must set forth facts that, if true, would establish a constitutional violation entitling the petitioner to relief. Paez, 947 F.3d at 649 (citing Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011) (holding that a § 2254 petition must comply with the "fact pleading requirements of [Habeas] Rule 2(c) and (d)" to survive dismissal under Rule 4)). A dismissal may be appropriate either on the merits or on a finding that the petition is procedurally barred or for both reasons. Paez, 947 F.3d at 649; Rohda v. Gordy, No. CA 14-0169-WS-C, 2014 WL 2616627, at *1 (S.D. Ala. June 12, 2014) (holding that "federal courts are authorized to raise the exhaustion issue sua sponte") (citing McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir. 2005)). In this case, dismissal is recommended both because the petition demonstrates that Petitioner has not exhausted his state court remedies and because Petitioner has not asserted facts to support a meritorious habeas claim, as discussed in turn below.
II. Failure to Exhaust
Before a petitioner may seek federal habeas relief, he must exhaust his state court remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Isaac v. Augusta SMP Warden, 470 F. App'x 816, 818 (11th Cir. 2012) (per curiam) ("Before bringing a habeas action in federal court, however, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion."); Thomas v. Crosby, 371 F.3d 782, 812 (11th Cir. 2004) (explaining that "[a]mong the most fundamental common law requirements of § 2241 is that petitioners must first exhaust their state court remedies"). If a petitioner fails to exhaust state remedies, the district court should dismiss the petition without prejudice to allow exhaustion. See Isaac, 470 F. App'x at 818, citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982). A petitioner "shall not be deemed to have exhausted" the available state court remedies "if he has the right under the law of the State to raise, by any available procedure," the claims he has presented in his federal habeas petition. 28 U.S.C. § 2254(c).
Petitioner asserts in the petition that he has been detained pursuant to a debt owed on a child support order entered December 12, 2019. Am. Pet. 2, ECF No. 11. In response to the question asking whether he filed a first appeal from the order, Petitioner answered "no." Id. In response to the question asking whether he filed a second appeal, Petitioner answered "yes," but he did not include any information about any appeal that he purportedly filed. See id. at 2-3. Moreover, Petitioner asserts that he has not filed any other "petition, motion, or application about the issues raised in this petition," which indicates that he has not filed any state petition for habeas corpus challenging his current detention. See id. at 4. Additionally, with regard to each issue that Petitioner asserts, he indicates that he has not raised those issues in the appeals that were available to him, and his only explanation as to why he has not done so is a general statement that he "never had the opportunity to be heard." See id. at 5-6.
Thus, the face of Petitioner's petition demonstrates that Petitioner did not appeal the state court's decision or file any state habeas petition to challenge his current incarceration, which means that he has not exhausted his state court remedies before coming to this Court for relief. See 28 U.S.C. § 2254(c). Accordingly, it is RECOMMENDED that the petition be DISMISSED WITHOUT PREJUDICE for failure to exhaust all available state court remedies.
III. Failure to Assert a Sufficient Claim
Alternatively, dismissal is recommended because Petitioner has not set forth facts that, if true, would establish a constitutional violation entitling Petitioner to relief. Paez, 947 F.3d at 649. In his petition, Petitioner asserts that he is challenging his incarceration because it is unconstitutional to be imprisoned on a debt. Am. Pet. 1, ECF No. 11. Petitioner's pleadings show, however, that he has been incarcerated for failure to comply with a child support order, which amounts to incarceration for contempt of a court order, which, in itself, is not unconstitutional. See, e.g., Turner v. Rogers, 564 U.S. 431 (2011) (discussing constitutional requirements that must be met in proceedings for civil contempt for failure to pay child support that may result in incarceration).
Although a contempt hearing and subsequent incarceration could be unconstitutional if certain conditions are not met, see id. at 448-49, Petitioner in this case does not set forth any factual allegations showing that the proceeding that resulted in his incarceration was unconstitutional. In particular, in his first claim, Petitioner generally asserts that he was denied due process and states as "facts" that he has no contract with the Department of Human Services, "we do not own the name the public debt is created on," "the United States owns that name," and the "Department of Human Services has already been defaulted with [a] counter offer." Am. Pet. 5, ECF No. 11.
Petitioner also contends in his second claim that he did not have an opportunity to be heard, but the "facts" he sets forth in support of this claim are that he has been illegally incarcerated on a civil debt, "that property has been taken from the estate," "that we would like our property returned and restored," "that debt is an obligation of the United States," and "that all 1099-A, C, and OIDs are being submitted for every case that has involvement with the matter." Id. In his third and fourth claims, Petitioner makes only general assertions that child support requirements violate the separation of powers doctrine, have been held to violate various constitutional provisions, and violate the commerce clause. Id. at 5-6.
In none of these claims does Petitioner include any specific facts about the proceedings in his case to show that his constitutional rights have been violated in any way. Petitioner's contentions bear the hallmarks of the "sovereign citizen" mythology, in which so-called sovereign citizens invoke "the Uniform Commercial Code ('UCC'), admiralty laws, and other commercial statutes to argue that, because [they have] made no contract with [the court or government], neither entity can foist any agreement upon [them]." See United States v. Perkins, No. 1:10-cr-97-1, 2013 WL 3820716, at *1 (N.D. Ga. July 23, 2013) aff'd, 787 F.3d 1329 (11th Cir. 2015). The "sovereign citizen" theory is a frivolous legal theory that has been consistently rejected by federal courts. See, e.g., Trevino v. Florida, 687 F. App'x 861, 862 (11th Cir. 2017) (per curiam) (finding plaintiff's sovereign citizen arguments frivolous and "clearly baseless"); Linge v. State of Georgia Inc., 569 F. App'x 895, 896 (11th Cir. 2014) (finding the sovereign citizen argument to be to "wholly insubstantial and frivolous"); United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir.1993) (rejecting sovereign citizen argument as "shop worn" and frivolous); Muhammad v. Smith, No. 3:13-cv-760 (MAD/DEP), 2014 WL 3670609, at *2 (N.D.N.Y. July 23, 2014) (collecting cases and noting that "[t]heories presented by redemptionist and sovereign citizen adherents have not only been rejected by courts, but also recognized as frivolous and a waste of court resources"). Thus, these assertions do not set forth a basis for relief, and Petitioner has not set forth facts that, if true, would establish a constitutional violation entitling Petitioner to relief. See Paez, 947 F.3d at 649.
Finally, Petitioner's assertion that the Georgia child support guidelines were ruled unconstitutional in Ga. Dep't of Human Resources v. Sweat, 580 S.E.2d 206 (Ga. 2003), is unavailing. In Sweat, the trial court had concluded that the child support guidelines were unconstitutional on several grounds, but the Georgia Supreme Court reversed that ruling, concluding that the guidelines were constitutional. 580 S.E.2d at 628-31. Further, the Court knows of no authority finding the guidelines, in general, to be unconstitutional.
In SisterSong Women of Color Reproductive Justice Collective v. Kemp, 2020 WL 3958227 (N.D. Ga. July 13, 2020), the Northern District of Georgia recently issued an order concluding that the Living Infants Fairness and Equality ("LIFE") Act. H.B. 481 § 1, 155th Gen. Assemb., Reg. Sess. (Ga. 2019), which includes a modification to the child support guidelines statute, O.C.G.A. § 19-5-16, is unconstitutional. That case did not, however, include any ruling that the child support guidelines statute, itself, is unconstitutional, nor does that decision otherwise change the analysis in this recommendation in any way. --------
Accordingly, for the reasons set forth herein, Petitioner's petition is subject to dismissal on preliminary review pursuant to Rule 4 of the Rules Governing § 2254 Cases. It is therefore RECOMMENDED that this petition be DISMISSED WITHOUT PREJUDICE for failure to assert facts establishing a constitutional violation.
RIGHT TO FILE OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), Petitioner may serve and file written objections to this recommendation with the United States District Judge to whom this case is assigned within FOURTEEN (14) DAYS of his being served with a copy of this Order. Petitioner may seek an extension of time in which to file written objections or amendments, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO ORDERED and RECOMMENDED, this 20th day of July, 2020.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge