Opinion
Civil Action 23-1576
07-07-2023
WESLEY S. RICKS, #499599 v. STATE OF LOUISIANA, ET AL.
SECTION “J” (1)
REPORT AND RECOMMENDATION
JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE
Petitioner, Wesley S. Ricks, a Louisiana state prisoner, filed with this Court a document he styled as a “Complaint.” Because that document appeared to challenge his state conviction, and because the relief he sought was immediate release from incarceration, the Clerk of Court construed the pleading as a deficient petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. On May 11, 2023, the Clerk then issued a Notice of Deficient Filing directing petitioner to (1) resubmit his pleading on the Court's approved form for § 2254 petitions and (2) either pay the required filing fee or submit an application to proceed in forma pauperis. Petitioner did not respond.
Rec. Doc. 1.
See id. at p. 3 (“Wesley S. Ricks wants this court to order that Wesley S. Ricks 499599 be given an immediate release from in [sic] custody of the State of Louisiana ....”)
See, e.g, Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]e hold today that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”).
Rec. Doc. 2.
On June 12, 2023, the undersigned then issued an order directing petitioner to remedy the defects identified by the Clerk on or before July 5, 2023. He was warned that if he failed to comply with that order, the undersigned would recommend that this matter be dismissed. Again, petitioner did not respond.
Rec. Doc. 3.
Because petitioner has not paid the filing fee or submitted an application to proceed in forma pauperis in connection with the instant pleading, it was not properly filed. See Rule 3(a) of the Rules Governing Section 2254 Cases in the United States District Courts. Accordingly, this case should be dismissed. See, e.g., Searls v. Cain, Civ. Action No. 08-928, 2008 WL 1745142 (E.D. La. Apr. 10, 2008).
Out of an abundance of caution, the undersigned additionally makes the following observations.
First, it appears that petitioner filed his pleading in the wrong court. Although this Court generally has jurisdiction to entertain habeas corpus applications, federal law provides:
In fact, it is possible that petitioner never intended to seek relief in this Court, given that his “Complaint” is captioned for the United States District Court for the Western District of Louisiana. See Rec. Doc. 1, p. 1.
Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
28 U.S.C. § 2241(d) (emphasis added). Petitioner is incarcerated at the Louisiana State Penitentiary in West Feliciana Parish, which falls within the geographic boundaries of the Middle District of Louisiana. 28 U.S.C. § 98(b). Further, based on the attachments to his “Complaint,” it appears that the conviction he seeks to challenge was obtained in Morehouse Parish, which falls within the geographic boundaries of the Western District of Louisiana. 28 U.S.C. § 98(c). Accordingly, the Eastern District of Louisiana is not a proper forum for a habeas petition challenging the conviction.
See Rec. Doc. 1-1.
Second, it appears that petitioner has already sought and been denied habeas corpus relief with respect to that same Morehouse Parish conviction. See Ricks v. Vannoy, Civ. Action No. 210831, 2021 WL 3085005 (W.D. La. July 12, 2021), adopted, 2021 WL 3081887 (W.D. La. July 21, 2021) (dismissing the petition with prejudice as time-barred), appeal dismissed, No. 21-30565, 2022 WL 611582 (5th Cir. July 19, 2022) (dismissing the appeal for want of jurisdiction because the notice of appeal was untimely), cert. denied, 142 S.Ct. 2656 (2022). Therefore, if petitioner is indeed again trying to challenge that same conviction, he must first seek authorization from the United States Fifth Circuit Court of Appeals to file a second or successive petition. See 28 U.S.C. § 2244(b)(3)(A).
Petitioner is obviously aware of that requirement, in that his previous attempts to file second or successive petitions without authorization were dismissed in the Western District for lack of jurisdiction. Ricks v. State, Civ. Action No. 23-0152, 2023 WL 2606601 (W.D. La. Mar. 2, 2023), adopted, 2023 WL 2603602 (W.D. La. Mar. 22, 2023), certificate of appealability denied, No. 23-30177, 2023 WL 3970031 (5th Cir. May 3, 2023); Ricks v. State, Civ. Action No. 5247, 2022 WL 16543274 (W.D. La. Oct. 19, 2022), adopted, 2022 WL 16543273 (W.D. La. Oct. 28, 2022).
Third, if contrary to the Clerk of Court's assumption, petitioner's complaint was not a deficient federal habeas corpus petition but was instead intended as federal civil rights complaint filed pursuant to 42 U.S.C. § 1983, dismissal is still appropriate in that, again, no filing fee has been paid. Further, it must be noted that advance payment of the full filing fee would be required in that case. Because petitioner has had three or more federal civil actions dismissed as frivolous, malicious, or for failure to state a claim, and because the instant complaint does not allege an imminent danger of serious physical injury, 28 U.S.C. § 1915(g) would bar him from pursuing this matter as a § 1983 action as a pauper. See Ricks v. Louisiana, Civ. Action No. 22-696, 2022 WL 15446404 (W.D. La. Oct. 26, 2022) (denying pauper status pursuant to § 1915(g) and identifying petitioner's three prior “strikes”).
RECOMMENDATION
It is therefore RECOMMENDED that the application filed by Wesley S. Ricks be DISMISSED WITHOUT PREJUDICE.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).