Opinion
CASE NO. C02-2338C
January 3, 2003
REPORT AND RECOMMENDATION
INTRODUCTION
Petitioner Gary Ray Garris has submitted documents to the court by which he seeks to file a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence. (Dkt. #1). The matter was referred to the undersigned United States Magistrate Judge on December 5, 2002. (Dkt. #2). For the reasons below, the court recommends that petitioner's motion be dismissed prior to service on respondent.
DISCUSSION
Petitioner has filed in this calendar year sixteen similar petitions under either 28 U.S.C. § 2241, § 2254, or § 2255. The petitions have all been nearly incomprehensible; many do not actually challenge any conviction in either state or federal court. One § 2255 motion was transferred to the United States District Court for the Eastern District of Washington, where it was summarily dismissed because Mr. Garris is subject to an Order barring all further filings in that court. Garris v. USA, C02-1483C; Garris v. Phip Thompson. et al., CS-00-395 RHW. Petitioner has also filed three civil rights complaints in this court, all similarly incredible and incomprehensible.
Garris v. USA, C02-2218L; Garris v. Fort Lewis Tacoma, C02- 1977Z;Garris v. Superior Court, C02-1694P; Garris v. Greenwich Barb Logen, C02-1429R; Garris v. Voss, C02-1336L; Garris v. Jim Carter. et al., C02-1316C; Garris v. U.S. Supreme Court, C02-0092C; Garris v. Bush, C02-1328C; Garris v. McDonald, C02-0093C; Garris v. USA, C02-1483C;Garris v. USA, C02-2169Z; Garris v. Nord Resources, C02-2113P; Garris v. USA, C02-0317P; Garris v. USA, C02-2170R, Garris v. USA SSR, C02-2323R,Garris v. USA, C02-2410Z.
Garris v. George Bush, C02-1485R; Garris v. Medicare, C02-1640C;Garris v. Social Security Administration, C02-1587P.
Although the papers filed by petitioner in the instant motion are largely incomprehensible, the court is able to glean several deficiencies which warrant summary dismissal of the motion, prior to service on respondent. First, petitioner's address reveals that he is not in custody, nor does he allege that he is on parole or under any form of supervised release. (Plaintiff lists a downtown Seattle hotel as his address.) Relief under section 2255 is available only if the petitioner is in custody, or subject to restraints not shared by the public generally. See 28 U.S.C. § 2255; Hensley v. Municipal Court, 411 U.S. 345, 351 (1973). Second, the motion does not appear to challenge any federal conviction. He lists no case number for a criminal conviction in this court, nor does a review of the Clerk's records reveal such a conviction, either in this District or the Eastern District of Washington. As best as the court can decipher, petitioner appears to be attempting to challenge a state court trespassing conviction entered against him by the "District Court Spokane WA Judge Richards." (Dkt. #1 at 1). Clearly, such a conviction cannot be the target of a § 2255 motion here.
CONCLUSION
For the foregoing reasons, petitioner's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence should be summarily denied. In addition, petitioner should be advised that if he persists in filing such frivolous petitions, an order barring future filings, similar to that entered by the United States District Court for the Eastern District of Washington, may be entered against him here. Proposed forms of Order and Judgment reflecting this recommendation are attached.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
CHAMBERS OF UNITED STATES COURTHOUSE MONICA J. BENTON 1010 FIFTH AVE. UNITED STATES MAGISTRATE JUDGE SEATTLE, WA 98104 (206) 553-4463
January 6, 2003
TO: Gary Ray Garris. Pro Se CIO St. Regis Hotel 116 Stewart Street Ste. 707 Seattle, WA 98101
FROM: MONICA J. BENTON United States Magistrate Judge
RE: GARRIS v. U.S.A. Case No. C02-2338C
Attached are copies of my Report and Recommendation, proposed order and judgment in the above-captioned case. The originals are being filed with the Clerk. This Report and Recommendation is not an appealable order. Any notice of appeal should not be filed until the District Judge enters judgment in this case.
Objections to the recommendation should be filed and served within fifteen days of the date of this letter with copies to the Clerk for forwarding to the District Judge and to my office. Failure to file objections within the specified time waives the right to appeal any order by the District Court adopting this Report and Recommendation. In accordance with our local rules, you should note your objections for consideration on the Judges motion calendar for the third Friday after they are filed. If no timely objections are filed, the matter will be ready for consideration by the District Judge on January 24, 2003.
Thank you for your cooperation.
Attachments MJB/ajd
cc: Honorable District Court Judge Barbara J. Rothstein
United States District Judge WESTERN DISTRICT OF WASHINGTON AT SEATTLE
GARY RAY GARRIS, Case No. C02-2338C
Petitioner,
v. ORDER DISMISSING MOTION UNDER 28 U.S.C. § 2255
UNITED STATES OF AMERICA
Respondent. __________________________
The Court, having reviewed petitioner's motion under 28 U.S.C. § 2255, the Report and Recommendation of the Honorable Monica J. Benton, United States Magistrate Judge, and the balance of the record, does hereby find and ORDER:
(1) The Court adopts the Report and Recommendation.
(2) Petitioner's motion (Dkt. #1) is DISMISSED without prejudice. Petitioner is advised that if he persists in filing frivolous motions, an order barring future filings, similar to that entered against him by the United States District Court for the Eastern District of Washington, may be entered against him here.
(3) The Clerk is directed to send copies of this Order to petitioner and to Judge Benton.
DATED this ___ day of __________, 2003.
__________________________________ JOHN C. COUGHENOUR Chief United States District Judge
AO 450 (Rev. 5/85) Judgment in a Civil Case
United States District Court WESTERN DISTRICT OF WASHINGTON AT SEATTLE
GARY RAY GARRIS,
Petitioner, JUDGMENT IN A CIVIL CASE
v. CASE NUMBER: C02-2338C UNITED STATES OF AMERICA,
Respondent.
___ Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
X Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
The Report and Recommendation is approved and adopted. Petitioner's motion is DISMISSED without prejudice. Petitioner is advised that if he persists in filing frivolous motions, an order barring future filings, similar to that entered against him by the United States District Court for the Eastern District of Washington, may be entered against him here.
Dated this ___ day of ______________, 2003. BRUCE RIFKIN ________________________ Clerk
________________________ Deputy Clerk