Opinion
NO. 1:10-CV-00944.
June 23, 2011
OPINION AND ORDER
On December 22, 2010, Petitioner filed an "Application for an Alternative Writ of Habeas Corpus and a Rule Nisi Order Pursuant to 28 U.S.C. § 1651(a)(b) for its Lawful Determination", in which he alleges that he is "not in the lawful custody of the State of Ohio or its agents," that "the provisions of 28 U.S.C. § 2254 do not apply to the matter at hand [as] Petitioner is not in custody pursuant to the judgment of a State court" (doc. 2). On February 28, 2011, the Magistrate Judge issued an order in which, inter alia, she noted that "[t]o the extent that petitioner seeks to challenge his sentence and incarceration stemming from that conviction [for felonious assault in the Brown County, Ohio Court of Common Pleas], petitioner must file a petition under 28 U.S.C. § 2254" and ordered that Petitioner file an amended petition setting forth the specific grounds upon which he seeks relief and the facts supporting his claims (doc. 8). Petitioner objected to that order (doc. 10), and the Court denied Petitioner's objections and affirmed the Magistrate Judge's order on April 5, 2011 (doc. 12). On April 13, 2011, Petitioner filed a "motion for relief from the 4-5-2011 order of the court" (doc. 14). For the reasons herein, the Court DENIES that motion.
The All Writs Act, 28 U.S.C. § 1651, under which Petitioner seeks relief, cannot provide him with the relief he seeks. "The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling."Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985). As the Court noted in its earlier order, when a state prisoner seeks to challenge his incarceration, 28 U.S.C. § 2254 is the controlling statute. Here, Petitioner styled his petition as one under 28 U.S.C. § 1651 but he claims that he is "being held without legal authority to do so" (doc. 1). This is a challenge to his incarceration. Because 28 U.S.C. § 2254 "specifically addresses the particular issue at hand," 28 U.S.C. § 2254, not 28 U.S.C. § 1651, controls.
As noted by the Seventh Circuit, "every collateral attack by a state prisoner on a final judgment of conviction necessarily depends on § 2254. It is not possible to escape its limitations by citing some other statute. . . . Persons still in custody must look to § 2254 . . . for relief; they cannot use § 1651(a) to escape statutory restrictions on those remedies." Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000) (rejecting petitioner's attempt to characterize his petition as one for relief under the All Writs Act).
Therefore, neither the Magistrate Judge nor this Court erred by directing Petitioner to file a form AO 241, Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, because that is the only potential federal avenue for relief available to an incarcerated state prisoner who seeks to challenge his incarceration, as Petitioner does.
Petitioner repeatedly asserts that he is seeking a rule nisi but fails to explain why § 2254 does not control here (doc. 14). Although in his original petition he stated that he was "being held without legal authority to do so," in the current motion he claims that he is not seeking to challenge his conviction "as it is already a legal nullity" and § 2254 and Form AO 241 are for "prisoners," implying that he is not a prisoner. However, Petitioner is indeed a prisoner, incarcerated after his conviction by jury of felonious assault and currently housed at the Chillicothe Correctional Institution. If Petitioner believes that his conviction was obtained in violation of the Constitution, he can attempt to challenge it through § 2254, but his mere beliefs that he was wrongfully convicted or otherwise should not be incarcerated are insufficient to render his conviction "a legal nullity" or otherwise change his status as "prisoner." See,e.g., Frazier v. Moore, 252 Fed. Appx. 1 (6th Cir. 2007) ("The fact that the state court judgment may have been procured in violation of state or federal law does not . . . render the judgment null.").
The Court notes that a recent case brought by a prisoner similarly incarcerated at the Chillicothe Correctional Institution, wherein the prisoner presented virtually identical arguments to those presented here, was heard by another judge in this district. Just as in that case, Petitioner "is a prisoner, because he is not free to leave the Chillicothe Correctional Institution. Many incarcerated persons claim, as does [Petitioner], that there was a legal flaw in the process which imprisoned them. Whether or not they are justly imprisoned, however, they are still prisoners." Justice v. Chillicothe Correctional Inst., 2011 WL 802700 (S. D. Ohio March 2, 2011) (finding no merit to petitioner's claim that he is not a state prisoner, finding that he failed to file a petition for habeas corpus-his sole avenue for relief-within the one-year limitation period, and dismissing petition). See also, Foster v. Warden, Chillicothe Correctional Inst., 2011 WL 692231 (S.D. Ohio February, 17, 2011) (rejecting same arguments and noting that "if the Court were to grant him any relief, including a declaration that the judgment of the state court under which he is being held is a nullity, the effect of that decision would be to release him from state custody. Consequently, his remedy in federal court is appropriately and only a writ of habeas corpus.").
Further, Petitioner is simply wrong in his assertion that the Magistrate Judge was without lawful authority to issue an order in this matter. Pursuant to 28 U.S.C. § 636 and the February 23, 2011 General Order of Assignment and Reference, the Magistrate Judges of this district are indeed empowered to issue orders such as the one issued by the Magistrate Judge in this matter.
Finally, Petitioner repeatedly asserts that he seeks relief under Federal Rule of Civil Procedure 60(b)(4), (6). That rule offers no assistance to Petitioner. Rule 60(b) provides, in relevant part, "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order or proceeding for the following reasons: . . . (4) the judgment is void; . . . (6) any other reason that justifies relief." It is not clear in any of Petitioner's filings before the Court whether he believes that Rule 60 could provide him relief from his underlying conviction or whether he believes it could provide him relief from the Magistrate Judge's report and recommendation. Either way, Rule 60 cannot help Petitioner. To the extent he thinks Rule 60 can be used as a way of voiding his underlying state conviction, he is wrong because Rule 60 governs federal orders and judgments, not state convictions. To the extent he thinks Rule 60 can be used to void the Magistrate Judge's report and recommendation, he is wrong because, by its express terms, the rule applies only to judgments that are final and appealable, and a magistrate judge's report and recommendation is neither. Therefore, Petitioner's reliance on Federal Rule of Civil Procedure 60 is entirely misplaced.
On February 28, 2011, the Magistrate Judge issued an order mandating that Petitioner file an amended petition setting forth the specific grounds upon which he rests his petition for habeas corpus and the facts supporting his claims. That amended petition was to have been filed within thirty days of the filing of that order. Rather than comply with the Court's generous order, Petitioner has chosen instead to contest the Court's every move. Petitioner has repeatedly stated that he does not seek habeas relief and has failed to comply with the deadlines imposed by the Court. He has made it abundantly clear that he has no intention of complying with the well-established rules and procedures that govern this matter and that he will not pursue the only avenue legitimately open to him, habeas relief. Therefore, for want of prosecution, this matter is DISMISSED WITH PREJUDICE from the Court's docket. This renders Petitioner's pending motion for summary judgment (doc. 19) moot and it is therefore denied as such.
SO ORDERED.
Exhibit