Opinion
C.A. No. 03-198L
June 2, 2003
David Woodruff, Pro Se.
Michael B. Grant, Esq., Appellee Counselor.
Report and Recommendation
On May 23, 2003, David Woodruff, pro se, filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Woodruff seeks habeas relief following his conviction by a Wyoming state court jury of first degree sexual assault and attempted first degree sexual assault. The Wyoming state court sentenced Woodruff to two concurrent terms of 15 to 50 years of incarceration. Woodruff did not appeal those convictions.
On June 15, 2000, Woodruff filed a petition for a writ of habeas corpus in the United States District Court for the District of Wyoming. The Wyoming District Court dismissed the petition as time barred and refused to issue a certificate of appealability. Woodruff thereafter filed an application for a certificate of appealability with the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit denied his application.
It may be noteworthy to point out Woodruff has filed numerous lawsuits in the United States District Court for the District of Wyoming and the Court of Appeals for the Tenth Circuit. Woodruff v. United States of America, 2002 WL 31693491 (10th Cir. 2002). The Tenth Circuit found Woodruff's filings to be "malicious, abusive, and frivolous" and placed numerous restriction on the him before he may commence a suit in that jurisdiction. See id.
In his instant application for habeas relief, Woodruff contends that his continued custody violates various provision of the: (1) United States Constitution; (2) American Convention on Human Rights Treaty; (3) Universal Declaration of Human Rights Treaty; (4) International Covenant on Civil and Political Rights Treaty; (5) American Declaration of the Rights and Duties of Man; and (5) United Nations Charter. However, the instant application should be sua sponte dismissed. This Court lacks jurisdiction over Woodruff's custodian, the warden of the Wyoming confinement facility. See Vasguez v. Reno, 233 F.3d 688 (1st Cir. 2000);Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). Jurisdiction over the custodian is paramount because "the writ of habeas corpus does not act upon the prisoner who seeks relief, but the person who hold him in what is alleged to be unlawful custody." Braden, 410 U.S. at 494-495.
Furthermore, this is Woodruff's second attempt at habeas relief, and the gate-keeping function for obtaining relief on a successive petition lies with the Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.") Petitioner has failed to secure appropriate authorization prior to filing the instant petition.
Accordingly, for the reasons stated above, I recommend that instant application for habeas relief be sua sponte dismissed. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).