Opinion
Case No. 2:12-cv-0275
04-02-2012
Scott A. Sears, Petitioner v. All in House and Names Known and Unknown to Courts, Respondent
Judge Frost
Magistrate Judge Abel
DEFICIENCY ORDER
Petitioner Scott A. Sears, a prisoner in the custody of the United States Marshal for the Southern District of Ohio, brings this action for writ of habeas corpus under 28 U.S.C. §2241. However, he has neither paid the Court's $5 filing fee for a habeas corpus action or moved to proceed in forma pauperis. In addition, Sears did not sign the habeas corpus petition.
Petitioner is ORDERED to either pay the $5 filing fee or fill out and execute the attached Application and Affidavit by An Incarcerated Person to Proceed Without Prepayment of Fees and costs and submit it together with the cashier's statement of his inmate funds within twenty-eight (28) days of the date of this Order. Failure to do so will result in this habeas corpus action being dismissed. See, McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997).
It is FURTHER ORDERED that petitioner Sears submitted a signed habeas corpus petition within twenty-eight (28) days of the date of this Order. A form § 2241 habeas corpus petitioner is attached.
Mark R. Abel
United States Magistrate Judge
Petitioner/PlaintifF(s),
-vs
Respondent/Defendant(s),
Case No.
APPLICATION AND AFFIDAVIT BY INCARCERATED PERSON
TO PROCEED WITHOUT PREPAYMENT OF FEES
NOTICE TO PRISONERS REGARDING
PROCEEDINGS IN FORMA PAUPERIS
Prisoner account statement required. A prisoner seeking to bring a civil action or file an appeal without prepayment of fees or security therefor must submit a certified copy of the trust fund account statement (or institutional equivalent) for the six-month period immediately preceding the filing of the complaint or the filing of a notice of appeal. Prison Litigation Reform Act of 1995, Pub. L. No. 104-131, 110 Stat. 1321, § 804(a) (1)-(3), 28 U.S.C. § 1915(a)-(h). The trust fund account statement is obtained from the cashier of the prison or prisons at which the prisoner was confined during the previous six months. 28 U.S.C. § 1915(a)(2). Since an appeal is a separate action, another application to proceed without prepayment of fees or security therefor must be filed when you file a notice of appeal.
Filing Fees. The current fees for filing a habeas corpus petition, civil complaint, and notice of appeal are:
• Habeas corpus petition............$5.00
• Civil complaint................ $350.00
• Appeal...................... $ 455.00
HABEAS CORPUS PETITIONS
A prisoner seeking habeas corpus relief must file an affidavit to proceed without prepayment of fees and a certified copy of the prisoner's trust fund account statement for the past six months.
CIVIL COMPLAINTS AND APPEALS
Prisoners must pay the full filing fee. If a prisoner brings a civil action in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee. 28 U.S.C. § 1915(b)(1).
Initial partial filing fee. The Court will assess and, when funds exist, collect, as partial payment of the filing fee, an initial partial filing fee of 20 percent of the greater of:
(1) the average monthly deposits to the prisoner's account; or
(2) the average monthly balance in the prisoner's account for the six-month period immediately preceding the filing of the complaint.
28 U.S.C. § 1915(b)(1). No matter how little money is in the prisoner's account, prison officials must forward payments to the Court until the initial partial filing is paid. In re Prison Litigation Reform Act, Administrative Order No. 97-01, Part II(C), 105 F.3d 1131, 1133 (6th Cir.1997).
Monthly payments. After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The cashier of the prison shall forward payments from the prisoner's account to the Clerk of the Court each time the amount in the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2).
If you cannot pay the initial partial filing fee. In no event shall a prisoner be prohibited from bringing a civil action for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee. 28 U.S.C. §1915(b)(4).
Example of how the filing fee will be assessed and collected. If Prisoner A had an average monthly balance in his/her prisoner's account for the previous six months of $2 and average monthly deposits of $20, then his/her initial partial filing fee would be $4, because thegreater of his/her average monthly balance ($2) and average monthly deposits ($20) is $20 and 20% of $20 is $4:
Average monthly deposit x 20% = Initial partial filing fee
$20 x .20 = $4.00
The Court's Order granting leave to proceed without prepayment of fees or security therefor would require the Prison Cashier to forward $4 to the Clerk of Court. No matter how little money is in Prisoner A's account when the Order is issued, prison officials must forward payments to the Court until the entire $4 initial partial filing is paid. In re Prison Litigation Reform Act, Administrative Order No. 97-01, Part II(C), 105 F.3d at 1133.
The Court's Order would also require the Cashier to collect each month a monthly payment of 20% of the preceding month's income credited to Prisoner A's account. If in the first month following the payment of the initial partial filing fee Prisoner A received $20 in State pay and no other monies were deposited in his account, his monthly payment would be $4 ($20 x .20 = $4). If in the second month following the payment of the initial partial filing fee Prisoner A received $20 in State pay and $50 from his family, his monthly payment would be $14 ($70 x .20 = $14). Every month the deposits in Prisoner A's account exceeded $10, the prison Cashier would assess, collect, and forward to the Clerk of Court a monthly payment of 20% of that month's total deposits. Each month the Cashier would continue to assess and collect monthly payments until the entire filing fee is paid.
Filing a complaint waives any objection to the Court assessing the fee. By filing the complaint, a prisoner waives any objection to the fee assessment by the Court. Furthermore, the prisoner waives any objection to the withdrawal of funds from the trust account by prison officials to pay the prisoner's court fees and costs. Prisoners have a duty to cooperate during the litigation. In re Prison Litigation Reform Act, Administrative Order No. 97-01, Part II, 105 F.3d at 1132.
Administrative remedies. Prisoners must exhaust available administrative remedies before bringing a civil action in federal court under 42 U.S.C. §1983 or any other federal law. The failure to exhaust such administrative remedies will result in the dismissal of the civil action. 42 U.S.C. §1997e(a). Prisoners seeking federal habeas corpus relief must first exhaust their available state court remedies under 28 U.S.C. 2254 (b).
Court required to dismiss complaints which are frivolous, malicious, or fail to state a claim.
The Court is required to conduct an initial screening of the complaint and to dismiss any action brought by a prisoner confined in any jail, prison, or other correctional facility with respect to prison conditions under 42 U.S.C. §1983 or any other federal law if the Court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 42 U.S.C. §1997e(c)(1); 28 U.S.C. §§ 1915A and 1915(e)(2).
Even if the complaint is dismissed, you must pay the entire filing fee. Dismissal of a civil action at any stage of the proceedings for any reason, including dismissals for failure to exhaust administrative remedies or dismissals on the basis that the claim is frivolous, malicious, or fails to state a claim upon which relief can be granted, will not release the prisoner from the obligation to pay the total filing fee. 28 U.S.C. § 1915(b)(1). Even if the Court dismisses the complaint the same day leave to proceed in forma pauperis is granted or a prisoner voluntarily dismisses a complaint (or files an appeal), he or she has to pay the required filing fees. In re Prison Litigation Reform Act, Administrative Order No. 97-01, Part III, 105 F.3d at 1133-34.
If a federal court has dismissed your complaints or appeals as frivolous, malicious or failing to state a claim three times in the past, you cannot proceed in forma _pauperis in a new case absent a threat of imminent, serious physical injury. A prisoner who has on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, cannot proceed in forma pauperis unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
AFFIDAVIT
I ____, declare that I am the (check appropriate box):
[] petitioner/plaintiff/movant [] other
in the above-entitled proceeding; that in support of my request to proceed without prepayment of the full filing fee or costs under 28 U.S.C. § 1915, I declare that I am unable to prepay the full filing fee or the costs of these proceedings and that I am entitled to the relief sought in the complaint/petition/motion.
In support of this application, I answer the following questions under the penalty of perjury:
1. Are you currently incarcerated? [] Yes [] No
If "Yes", state the place of incarceration:_
(If "No," this is the wrong form for you. You should request the Non-Prisoner Declaration in Support of Request to Proceed In Forma Pauperis.)
2. Do you have a work, program, status assignment or other circumstances which causes you to be paid by the prison, jail, or other custodial institution? []Yes [] No
If "Yes", state the amount credited to you each month: $_/month
3. In the past 12 months have you received any money from the following sources? If so, state the total amount received.
Amount
a. Business, profession or
other self-employment [] Yes [] No $_
b. Rent payments, interest
or dividends [] Yes [] No $_
c. Pensions, annuities or
life insurance payments [] Yes [] No $_
d. Disability or workers
compensation payments [] Yes [] No $
e. Gifts or inheritances [] Yes [] No $_
f. Any other sources [] Yes [] No $
If the answer to any of the above is "Yes", describe each source of money and state the amount received and what you expect you will continue to receive.
4. Do you have any cash or checking or savings accounts outside the prison?
[] Yes [] No Amount $_
5. Do you have a secondary savings account, such as a certificate of deposit or a savings bond, which is recorded by the prison cashier?
[] Yes [] No Amount $_
6. Do you own any assets, including real estate, stocks, bonds, securities, other financial instruments, automobiles or other valuable property?
[] Yes [] No
If "Yes", describe each asset and state its value.
ASSET VALUE
Autos_ $_
(Make/model/year)_
Stocks_ $_
_ $_
Bonds _ $_
Notes _ $_
Real Estate (market value)_$_
Less $_(mortgage)
Other _ $ ____
7. Have you on three or more prior occasions, while incarcerated or detained in any prison, jail or other facility, brought an action in a court of the United States that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted?
[] Yes [] No
If "Yes," list the dismissals:
+---------------------------------+ ¦Date Dismissed¦Case Name¦Case No.¦ +--------------+---------+--------¦ +--------------+---------+--------¦ +--------------+---------+--------¦ +--------------+---------+--------¦ +--------------+---------+--------¦ +---------------------------------+
DECLARATION UNDER PENALTY OF PERJURY
I declare under penalty of perjury that I have submitted above a complete statement of all the assets I possess and that all of the information is true and correct.
I understand that my signature below authorizes the institution of incarceration to forward from my account to the Clerk of the Court any initial partial filing fee assessed by the Court in the amount of 20 percent of the greater of the average monthly deposits to my prison account or the average monthly balance in my prison account for the six-month period immediately preceding the filing of the complaint. Thereafter, I authorize the institution of incarceration to forward monthly payments of 20 percent of my preceding month's income credited to my prison account until I have paid the full amount of the filing fee.
________________
SIGNATURE OF APPLICANT
Have the institution fill out the Certificate portion of this affidavit and attach a certified copy of your prison trust fund account statement from the institution(s) of your incarceration showing at least the past six months' transactions.
CERTIFICATE
(To be completed by the institution of incarceration)
I certify that the applicant named herein has the sum of $ _ on account to
his/her credit at (name of institution) _. I further certify
that during the past six months the applicant's average monthly balance was $ _ and the
applicant's average monthly deposits were $ _. I have attached a certified copy of the
applicant's prison trust fund account statement showing at least the past six months' transactions.
I further certify that the applicant does/does not have a secondary savings account(s), such as a certificate of deposit or a savings bond. The secondary account(s) balance is $ _.
________________
SIGNATURE OF AUTHORIZED OFFICER
PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
Instructions
1. Who Should Use This Form. You should use this form if
• you are a federal prisoner and you wish to challenge the way your sentence is being carried out (for example, you claim that the Bureau of Prisons miscalculated your sentence or failed to properly award good time credits);
• you are in federal or state custody because of something other than a judgment of conviction (for example, you are in pretrial detention or are awaiting extradition); or
• you are alleging that you are illegally detained in immigration custody.
2. Who Should Not Use This Form. You should not use this form if
• you are challenging the validity of a federal judgment of conviction and sentence (these challenges are generally raised in a motion under 28 U.S.C. § 2255);
• you are challenging the validity of a state judgment of conviction and sentence (these challenges are generally raised in a petition under 28 U.S.C. § 2254); or
• you are challenging a final order of removal in an immigration case (these challenges are generally raised in a petition for review directly with a United States Court of Appeals).
3. Preparing the Petition. The petition must be typed or neatly written, and you must sign and date it under penalty of perjury. A false statement may lead to prosecution.
All questions must be answered clearly and concisely in the space on the form. If needed, you may attach additional pages or file a memorandum in support of the petition. If you attach additional pages, number the pages and identify which section of the petition is being continued. Note that some courts have page limitations. All filings must be submitted on paper sized 8'/2 by 11 inches. Do not use the back of any page.
4. Supporting Documents. In addition to your petition, you must send to the court a copy of the decisions you are challenging and a copy of any briefs or administrative remedy forms filed in your case.
5. Required Filing Fee. You must include the $5 filing fee required by 28 U.S.C. § 1914(a). If you are unable to pay the filing fee, you must ask the court for permission to proceed in forma pauperis - that is, as a person who cannot pay the filing fee - by submitting the documents that the court requires.
6. Submitting Documents to the Court. Mail your petition and _copies to the clerk of the United States District Court for the district and division in which you are confined. For a list of districts and divisions, see 28 U.S.C. §§ 81-131. All copies must be identical to the original. Copies may be legibly handwritten.
If you want a file-stamped copy of the petition, you must enclose an additional copy of the petition and ask the court to file-stamp it and return it to you.
7. Change of Address. You must immediately notify the court in writing of any change of address. If you do not, the court may dismiss your case.
Petitioner
v.
Respondent '
(name of warden or authorized person having custody of petitioner)
Case No.
(Supplied by Clerk of Court)
PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
Personal Information
1. (a) Your full name:
(b) Other names you have used:
2. Place of confinement:
(a) Name of institution:
(b) Address:
(c) Your identification number:
3. Are you currently being held on orders by:
[] Federal authorities [] State authorities [] Other - explain:
4. Are you currently:
[] A pretrial detainee (waiting for trial on criminal charges)
[] Serving a sentence (incarceration, parole, probation, etc.) after having been convicted of a crime if you are currently serving a sentence, provide:
(a) Name and location of court that sentenced you:
(b) Docket number of criminal case:
(c) Date of sentencing:
[] Being held on an immigration charge
[] Other (explain):
Decision or Action You Are Challenging
5. What are you challenging in this petition:
[] How your sentence is being carried out, calculated, or credited by prison or parole authorities (for example, revocation or calculation of good time credits)
[] Pretrial detention
[] Immigration detention
[] Detainer
[] The validity of your conviction or sentence as imposed (for example, sentence beyond the statutory maximum or improperly calculated under the sentencing guidelines)
[] Disciplinary proceedings
[] Other (explain):
6. Provide more information about the decision or action you are challenging:
(a) Name and location of the agency or court:
(b) Docket number, case number, or opinion number:
(c) Decision or action you are challenging (for disciplinary proceedings, specify the penalties imposed):
(d) Date of the decision or action:
Your Earlier Challenges of the Decision or Action
7. First appeal
Did you appeal the decision, file a grievance, or seek an administrative remedy? [] Yes [] No
(a) If "Yes," provide:
(1) Name of the authority, agency, or court:
(2) Date of filing:
(3) Docket number, case number, or opinion number:
(4) Result: _
(5) Date of result:
(6) Issues raised:
(b) If you answered "No," explain why you did not appeal:
8. Second appeal
After the first appeal, did you file a second appeal to a higher authority, agency, or court?
[] Yes [] No
(a) If "Yes," provide:
(1) Name of the authority, agency, or court:
(2) Date of filing:
(3) Docket number, case number, or opinion number:
(4) Result: _
(5) Date of result:
(6) Issues raised:
(b) if you answered "No," explain why you did not file a second appeal:
9. Third appeal
After the second appeal, did you file a third appeal to a higher authority, agency, or court?
[] Yes [] No
(a) If "Yes," provide:
(1) Name of the authority, agency, or court:
(2) Date of filing:
(3) Docket number, case number, or opinion number:
(4) Result: _
(5) Date of result:
(6) Issues raised:
(b) If you answered "No," explain why you did not file a third appeal:
10. Motion under 28 U.S.C. § 2255
In this petition, are you challenging the validity of your conviction or sentence as imposed? [] Yes [] No
If "Yes," answer the following:
(a) Have you already filed a motion under 28 U.S.C. § 2255 that challenged this conviction or sentence? [] Yes [] No
If "Yes," provide:
(1) Name of court:
(2) Case number:
(3) Date of filing: _
(4) Result: _
(5) Date of result:
(6) Issues raised:
(b) Have you ever filed a motion in a United States Court of Appeals under 28 U.S.C. § 2244(b)(3)(A), seeking permission to file a second or successive Section 2255 motion to challenge this conviction or sentence?
[] Yes [] No
If "Yes," provide:
(1) Name of court:
(2) Case number:
(3) Date of filing: _
(4) Result: _
(5) Date of result:
(6) Issues raised:
(c) Explain why the remedy under 28 U.S.C. § 2255 is inadequate or ineffective to challenge your conviction or sentence:
11. Appeals of immigration proceedings
Does this case concern immigration proceedings? [] Yes [] No
If "Yes," provide:
(a) Date you were taken into immigration custody:
(b) Date of the removal or reinstatement order:
(c) Did you file an appeal with the Board of Immigration Appeals?
[] Yes [] No
If "Yes," provide:
(1) Date of filing:
(2) Case number:
(3) Result: _
(4) Date of result: _
(5) Issues raised:
(d) Did you appeal the decision to the United States Court of Appeals?
[] Yes [] No
If "Yes," provide:
(1) Name of court:
(2) Date of filing: _
(3) Case number:
(4) Result:
(5) Date of result:
(6) Issues raised:
12. Other appeals
Other than the appeals you listed above, have you filed any other petition, application, or motion about the issues raised in this petition?
[] Yes [] No
If "Yes," provide:
(a) Kind of petition, motion, or application:
(b) Name of the authority, agency, or court:
(c) Date of filing:
(d) Docket number, case number, or opinion number:
(e) Result: _
(f) Date of result:
(g) Issues raised:
Grounds for Your Challenge in This Petition
13. State every ground (reason) that supports your claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.
GROUND ONE:
(a) Supporting facts (Be brief. Do not cite cases or law.):
(b) Did you present Ground One in all appeals that were available to you? [] Yes [] No
GROUND TWO:
(a) Supporting facts (Be brief. Do not cite cases or law.):
(b) Did you present Ground Two in all appeals that were available to you? [] Yes [] No
GROUND THREE:
(a) Supporting facts (Be brief. Do not cite cases or law.):
(b) Did you present Ground Three in all appeals that were available to you? [] Yes [] No
GROUND FOUR:
(a) Supporting facts (Be brief. Do not cite cases or law.):
(b) Did you present Ground Four in all appeals that were available to you?
[] Yes [] No
14. If there are any grounds that you did not present in all appeals that were available to you, explain why you did not:
Request for Relief
15. State exactly what you want the court to do:
Declaration Under Penalty Of Perjury
If you are incarcerated, on what date did you place this petition in the prison mail system:
I declare under penalty of perjury that I am the petitioner, I have read this petition or had it read to me, and the information in this petition is true and correct. I understand that a false statement of a material fact may serve as the basis for prosecution for perjury.
________________
Signature of Petitioner
________________
Signature of Attorney or other authorized person, if any