Opinion
Civil Action No. 6: 20-123-DCR
08-06-2020
MICHAEL ELLIOTT, Petitioner, v. KEVIN MAZZA, Warden, Respondent.
MEMORANDUM ORDER
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Petitioner Michael Elliott, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 15, 2020. [Record No. 1] He also filed a motion to proceed in forma pauperis. [Record No. 2] The Court denied the motion, without prejudice, on June 17, 2020, directed the Clerk of Court to mail the petitioner relevant forms, and ordered Elliott to either pay a filing fee or renew the motion with completed forms that include the requisite information and prison official certification within 30 days. [Record No. 5]
Elliott subsequently filed a renewed application to proceed in forma pauperis. [Record No. 10] He filed the relevant forms, but the Certificate of Inmate Account that he submitted [Record No. 11] was not certified by prison personnel as required by the Court's prior Order. [Record No. 12] Based on this filing, the Court dismissed his petition on June 23, 2020. [Id.]
Thereafter, Elliott filed another motion for leave to proceed in forma pauperis [Record No. 13] and two motions for an extension of time [Record Nos. 15 and 18] to pay a filing fee. The Clerk of Court also received the filing fee on July 7, 2020. [Record No. 17] In light of these developments, United States Magistrate Judge Candace J. Smith reviewed the motions and issued a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 636(b) on July 20, 2020. [Record No. 20] Magistrate Judge Smith recommended that the Court: (1) construe the motions for an extension of time to pay the filing fee as motions to vacate the Court's prior Order dismissing the petition; (2) vacate that Order and reinstate this action; (3) deny the motion to proceed in forma pauperis as moot; and (4) transfer the matter to the United States Court of Appeals for the Sixth Circuit for consideration as a second or successive petition. [Id. at pp. 6-7]
Several other filings have been docketed since Magistrate Judge Smith issued the R&R. These include: a form notice of appeal postmarked July 14, 2020 [Record Nos. 21 and 21-3], a handwritten notice of appeal [Record No. 22], an application for a certificate of appealability ("COA") [Record No. 23], and a "statement of the case" [Record No. 25] that largely restates his petition's claims and requests an evidentiary hearing. A different filing addressed to the Sixth Circuit was also docketed in this Court at Record Number 26. That filing: asserts that the Court improperly dismissed the petition, moves for a delay of the appeal, reiterates the petition's underlying claims, and contends that Elliott is entitled to maintain a second or successive petition. [Record No. 26] The petitioner subsequently filed a motion to proceed in forma pauperis on appeal [Record No. 27], another notice of appeal [Record No. 28], a statement of the case with objections to the R&R included as an attachment [Record Nos. 29 and 29-2], a certified prisoner trust fund account statement [Record No. 30], and a filing that contains state court records relating to his underlying convictions [Record No. 31].
The Court has also examined relevant proceedings before the Sixth Circuit. Elliott's appeal of the Order dismissing his case remains pending. Elliott v. Mazza, No. 20-5851 (6th Cir. July 28, 2020). Additionally, it appears that Elliott maintains a separate action requesting Sixth Circuit certification of a second or successive 28 U.S.C. § 2254 petition, which accords with Magistrate Judge Smith's analysis regarding the procedural status of his initial petition. In re: Michael Elliott, No. 20-5857 (6th Cir. July 30, 2020).
Having considered the matter, the R&R will not be adopted because the case was effectively appealed under the prison mailbox rule on July 14, 2020, before the R&R was issued on July 20, 2020. See, e.g., United States v. Smotherman, 838 F.3d 736, 737 (6th Cir. 2016) (citations omitted). However, the Court agrees with Magistrate Judge Smith's analysis in its entirety. Should this action be remanded for further proceedings in district court, the petitioner will proceed without concerns over a filing fee. And in light of the posture and filings of this case, Elliott's motion to proceed in forma pauperis on appeal [Record No. 27] and application for a COA [Record No. 23] will be granted. Accordingly, it is hereby
ORDERED as follows:
1. Petitioner Michael Elliott's motion for leave to proceed in forma pauperis in district court [Record No. 13] and motions for an extension of time to pay the filing fee [Record Nos. 15 and 18] are DENIED, as MOOT.
2. The United States Magistrate Judge's Report and Recommendation, docketed as a motion [Record No. 20], is DENIED, as MOOT.
3. Elliott's objections to the Report and Recommendation [Record No. 29-2], are OVERRULED, as MOOT.
4. Elliott's application for a Certificate of Appealability [Record No. 23] is GRANTED.
5. Elliott's motion to proceed in forma pauperis on appeal [Record No. 27] is GRANTED.
6. To the extent Elliott intends the filings docketed at Record Numbers 22, 25, 26, 28, and 31 to be motions requesting relief from this Court, those motions are DENIED, as MOOT.
7. The Clerk of the Court is directed to forward a copy of this Order to the Clerk of the United States Court of Appeals for the Sixth Circuit.
Dated: August 6, 2020.
Danny C. Reeves, Chief Judge
United States District Court
Eastern District of Kentucky