Opinion
No. 3:01-CV-1371-P
March 18, 2002
FINDINGS, CONCLUSIONS AND OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background
On July 17, 2001, petitioner Omotayo Tony Fabuluje, an immigration detainee currently confined in Denton County Jail awaiting removal from the United States, filed a "Petition in the Nature of Writ of Mandamus Pursuant to 28 U.S.C. § 1361" in which he names eight respondents: (1) John Ashcroft, United States Attorney General; (2) Immigration and Naturalization Service (INS) Commissioner; (3) Anna Estrada, INS Dallas District Director; (4) Richard Stephens, Dallas United States District Attorney; (5) James T. Reynolds, Dallas INS District Counsel; (6) Solicitor General of the United States; (7) United States District Court for the Northern District of Texas, Dallas Division; and (8) the INS. On October 12, 2001, he filed a "Petition Seeking Declaratory Judgment and Injunctive Relief from Deportation Pursuant to 28 U.S.C. § 1331 in Conjunction with Petition in the Nature of Writ of Mandamus Pursuant to 28 U.S.C. § 1361 and an Emergency Stay of Deportation Pending Resolution of these Federal Questions" in which he names John Ashcroft; James W. Ziglar, INS Commissioner; and the INS as respondents. The Court has not issued process in this case.
As an initial matter, the Court will summarize petitioner's litigation history in this Court. Such summary provides relevant background information.
Petitioner's litigation history in this Court began in April 1997, when the United States brought a criminal action against him in United States v. Fabuluje, No. 3:97-CR-0113-H. That action resulted in petitioner's conviction for conspiracy to commit interstate theft, in violation of 18 U.S.C. § 371, 659 and obtaining naturalization by fraud in violation of 18 U.S.C. § 1425 (a). After the convictions, the trial court revoked petitioner's certificate of citizenship. He appealed the convictions and the revocation of his citizenship. See United States v. Fabuljue, No. 97-11278, slip op. at 1 (5th Cir. Jan. 27, 2000). The Fifth Circuit upheld the convictions and the revocation. Id. at 7.
The caption of the Fifth Circuit opinion misspells petitioner's name. The Court cites to that opinion as it is captioned.
Before the Fifth Circuit issued a ruling on his appeal, petitioner filed a civil tights action against Judge Sanders, an Assistant United States Attorney, and two other individuals. See Fabuluje v. Hamilton, No. 3:99-CV-2316-X. He therein alleged a conspiracy to indict him for procuring citizenship by fraud. He also alleged that Judge Sanders misused his judicial powers and erred in denying him a revocation hearing, revoking his citizenship, and recommending that he be denied bail pending appeal. On April 18, 2000, the Court dismissed the action against Judge Sanders on immunity grounds. Id. (Judgment dated Apr. 18, 2000). It dismissed the action against the other defendants as frivolous. Id.
Following his unsuccessful appeal, petitioner filed a motion for emergency injunction and stay of removal proceedings in Fabuluje v. Reno, No. 3:00-CV-1347-P. By Order of June 26, 2000, the Honorable Jorge Solis of this Court denied the requested stay of deportation proceedings and construed the remainder of the action as a motion to vacate under 28 U.S.C. § 2255 and transferred it to the Honorable Barefoot Sanders for resolution. On August 31, 2000, Judge Sanders summarily dismissed the claims raised in the § 2255 action after adopting the findings and conclusions of the United States Magistrate Judge entered August 15, 2000, and overruling petitioner's objections to such findings filed August 21, 2000. See Fabuluje v. Reno, Nos. 3:97-CR-0113-H, 3:00-CV-1347-H (Judgment and Mem. Op. Order both dated Aug. 31, 2000). On May 25, 2001, Judge Sanders transferred the sole remaining claim in Fabuluje v. Reno, No. 3:00-CV-1347-H to Judge Solis for resolution. On June 21, 2001, Judge Solis dismissed the remaining claim for the failure of petitioner to exhaust administrative remedies. See Fabuluje v. Reno, No. 3:00-CV-1347-P (Judgment entered June 21, 2001).
Upon the transfer from Judge Solis to Judge Sanders the letter in the case number was changed from "P" to "H" to reflect the appropriate district judge and the motion to vacate also became part of the criminal action, 3:97-CR-0113-H.
Upon the transfer from Judge Sanders to Judge Solis the letter in the case number was changed from "H" to "P" to reflect the appropriate district judge.
On December 28, 2000, petitioner filed a writ of error coram nobis in Fabuluje v. United States, No. 3:00-CV-2801-D. By Order dated June 18, 2001, the Honorable Sidney Fitzwater construed the action as a motion to vacate under 28 U.S.C. § 2255, after noting the unavailability of the requested writ, and transferred the action to the Honorable Barefoot Sanders. On July 10, 2001, Judge Sanders summarily dismissed the claims raised in the § 2255 action after adopting the findings and conclusions of the United States Magistrate Judge entered June 20, 2001, and overruling petitioner's objections to such findings filed June 29, 2001. See Fabuluje v. United States, Nos. 3:97-CR-0113-H, 3:00-CV-2801-H (Judgment and Order dated July 10, 2001).
Upon the transfer from Judge Fitzwater to Judge Sanders the letter in the case number was changed from "D" to to reflect the appropriate district judge and the motion to vacate also became part of the criminal action, 3:97-CR-0113-H.
On April 18, 2001, petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in Fabuluje v. INS, No. 3:01-CV-0753-X. On December 11, 2001, former District Judge Joe Kendall denied the § 2241 petition after adopting the findings and conclusions fo the United States Magistrate Judge entered October 26, 2001. See Fabuluje v. INS, No. 3:01-CV-0753-X (Judgment and Order dated Dec. 11, 2001).
On May 24, 2001, petitioner filed a writ of mandamus to compel Judge Sanders "to issue a final judgment" so as to permit petitioner to proceed on appeal in Fabuluje v. Sanders, No. 3:01-CV-0992-D. On July 23, 2001, Judge Fitzwater dismissed the action for lack of subject matter jurisdiction. See Fabuluje v. Sanders, No. 3:01-CV-0992-D (Judgment dated July 23, 2001).
II. Screening for Frivolity
The Court has permitted petitioner to proceed in forma pauperis. This action is thus subject to sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). That section provides for sua sponte dismissal, if the Court finds the complaint "frivolous" or if it "fails to state a claim upon which relief may be granted." A claim is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff or petitioner can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
In the instant action, petitioner seeks a writ of mandamus to compel respondents to perform a duty owed him under 8 C.F.R. § 340.1 (b)(6) and to apply the ruling in United States v. Pasillas-Gaytan, 192 F.3d 864 (9th Cir. 1999). (See Writ of Mandamus, at 4.) He also seeks a declaratory judgment and injunctive relief that compels respondents to afford him his rights under § 340.1(b)(6) and "Section 340(a) [ 8 U.S.C. § 1451 (a)]." (See Pet. Seeking Decl. J. at 23.) Petitioner, furthermore, takes great effort to set out what he does not seek in this action. (See id. at 22-23; Writ of Mandamus at 10.) He "does not by any means suggests, asks, or requests this Court to invalidate his conviction." (See Pet. Seeking Decl. J. at 22.) Instead, he asks the Court "to answer Federal questions related to Procedural and Substantive due process perpetuated by [the Attorney General]." (Id.) He requests the Court "to remedy due process violations due to [the Attorney General's] `affirmative misconduct.'" (Id.) He states that he is not requesting that the Court "`estop' [the Attorney General] from enforcing the nation's laws, but rather . . . for his failure to enforce the law as it is written and afford [petitioner] his due process rights under section 340(a), section 340.1(b)(6)." (Id. at 22-23.) He states that he is not challenging "his order of removal or any specific discretionary decision of the INS to detain or decline to release him pending removal." (Writ of Mandamus at 10.)
Were the Court to construe the instant action as another motion to vacate under 28 U.S.C. § 2255 or another petition for writ of habeas corpus under 28 U.S.C. § 2241, petitioner would have to overcome a number of procedural obstacles before the Court could address the merits of the action. In addition, the Court could perhaps dismiss the instant action as duplicative of his previous actions. A comparison of this case with previous cases filed by petitioner reveals striking similarities. For example, former District Judge Joe Kendall denied a § 2241 petition filed in Fabuluje v. INS, No. 3:01-CV-0753-X on April 18, 2001, that also relied upon 8 U.S.C. § 1451 and 8 C.F.R. § 340.1 for the requested relief. Before denying that petition, the Court considered and rejected the general applicability of 8 U.S.C. § 1451 and 8 C.F.R. § 340.1 to petitioner's factual situation. See Fabuluje v. INS, No. 3:01-CV-0753-X (Order of Dec. 11, 2001, that adopts the Findings and Recommendation dated Oct. 25, 2001.) Petitioner also raised an issue regarding 8 C.F.R. § 340.1 on direct appeal that was rejected. See United States v. Fabuljue, No. 97-11278, slip op. at 4 (5th Cir. Jan. 27, 2000).
Despite these potential bases for dismissal of this action, the Court proceeds to the merits of the instant action and finds no merit to it. Section 1361 of Title 28 of the United States Code provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff" Assuming, but not deciding, that the Court has authority under this section to compel respondents to act, § 1361 nevertheless limits such compelled action to the performance of a duty owed to the plaintiff, or in this case, the petitioner. Petitioner, however, has not shown that respondents owe him any duty to act.
Petitioner was convicted under 18 U.S.C. § 1425. In such instances, 8 U.S.C. § 1451 (e) mandates that the Court revoke his citizenship and declare his certificate of naturalization canceled. The other provisions of§ 1451 are simply inapplicable in such circumstances. See United States v. Moses, 94 F.3d 182, 188 (5th Cir. 1996). As already determined by this Court 8 C.F.R. § 340.1 "is wholly inapplicable" when a court has revoked a petitioner's citizenship following his conviction under 18 U.S.C. § 1425. See Fabuluje v. INS, No. 3:01-CV-0753-X (Findings and Recommendation dated Oct. 25, 2001, at 4 n. 5, adopted by Order of Dec. 11, 2001). The Court thus finds that respondents had no duty to act pursuant to 8 U.S.C. § 1451 or 8 C.F.R. § 340.1.
The Court notes, furthermore, that the Ninth Circuit has held "that the regulation providing for administrative revocation of citizenship 1 ( 8 C.F.R. § 340.1)] is void because of the absence of statutory authority for it." Gorbach v. Rena, 219 F.3d 1087, 1091 (9th Cir. 2000) (footnote omitted, but contents of such footnote included in parenthetical). The Ninth Circuit further stated "that the new regulations for administrative denaturalization were promulgated without authority from Congress. Congress has provided one way to revoke the citizenship of a naturalized American citizen. . . There is no statutory warrant for a second way, whereby the Immigration and Naturalization Service would revoke a person's citizenship administratively." Id. at 1099. If 8 C.F.R. § 340.1 is indeed void, it of course imposes no duty upon respondents. The Court, however, need not determine the validity of the regulation to find no duty owed to petitioner. Consequently, the Court leaves the determination of the regulation's validity to another day and another case.
The Court further finds that respondents had no duty to apply United States v. Pasillas-Gaytan, 192 F.3d 864 (9th Cir. 1999). That case has no relevance to the issues before the Court. The Ninth Circuit, on direct appeal, reversed a judgment and vacated a sentence for an erroneous jury instruction. 192 F.3d at 870. Petitioner here is well past direct appeal. He specifically states, furthermore, that he is not challenging his underlying convictions.
In the absence of a duty owed to petitioner by respondents, the Court is without authority to grant a writ of mandamus. Due to the inapplicability of 8 C.F.R. § 340.1 and the provisions of 8 U.S.C. § 1851, other than subparagraph (e), furthermore, petitioner is entitled to no declaratory judgment or injunctive relief requested by the instant action. The Court should thus deny all requested relief in this action. The action is frivolous within the meaning of 28 U.S.C. § 1915 (e)(2).
III. Sanctions
The Court possesses the inherent power "to protect the efficient and orderly administration of justice and . . . to command respect for the court's orders, judgments, procedures, and authority." In re Stone, 986 F.2d 898, 902 (5th Cir. 1993). Included in such inherent power is "the power to levy sanctions in response to abusive litigation practices." Id. Sanctions may be appropriate when a pro se litigant has a history of submitting multiple frivolous claims. See Fed.R.Civ.P. 11; Mendoza v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993). Pro se litigants have "no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). "Abusers of the judicial process are not entitled to sue and appeal without paying the normal filing fees — indeed, are not entitled to sue and appeal, period. Abuses of process are not merely not to be subsidized; they are to be sanctioned." Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989).
Petitioner here has filed numerous federal actions trying to collaterally attack his federal convictions and avoid the deportation consequences of those convictions. Under such circumstances, the Magistrate Judge is of the opinion that the Court should bar petitioner Omotayo Tony Fabuluje from filing any further federal actions, unless he obtains leave of court.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant petition for writ of mandamus and its accompanying petition seeking declaratory judgment and injunctive relief be DISMISSED with prejudice as frivolous under 28 U.S.C. § 1915 (e) (2).
It is further recommended that the District Court bar petitioner from filing further federal actions as set forth herein.
It is also recommended that the District Court order that no further pleadings from petitioner be filed by the District Clerk, unless leave of court is obtained from a judge.