United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this pro se habeas
case has been automatically referred for full case
management. Based on the relevant filings and applicable law,
the case should be dismissed without prejudice for failure to
prosecute or follow orders of the court.
Alexander (Petitioner), a prisoner currently incarcerated in
the Texas Department of Criminal Justice Ferguson Unit, filed
an untitled pleading seeking a “federal writ”
regarding the denial of his state habeas application by the
Texas Court of Criminal Appeals that was received on November
14, 2017. (See doc. 3.) His filing did not name a
specific respondent, but it referred to “TCCP.”
(Id.) He complained about the state habeas
procedure, alleged that the jury was misled because it was
not informed that he had mental health issues, and asserted
that his punishment should not have been enhanced as
“aggravated” because he was acquitted of
aggravated robbery in Cause No. 1552053 and convicted of
evading arrest in Cause No. 1552054. (Doc. 3 at 1.) He was
convicted of evading arrest and sentenced to five years'
imprisonment on February 19, 2016 in Cause No. 1552054 in
Dallas County, Texas. See
https://offender.tdcj.texas.gov (search for petitioner).
Notice of Deficiency and Order dated November 16,
2017, Petitioner was notified that he had not filed his
federal petition for writ of habeas corpus on the appropriate
form and paid the filing fee or submitted an application to
proceed in forma pauperis (IFP). (See doc.
4.) Attached to the order were copies of the appropriate form
for a § 2254 habeas petition and an IFP
application. (See id.) The order
specifically advised Petitioner that he must file his §
2254 petition on the appropriate form and either pay the $5
filing fee or submit an IFP application with the required
certificate of inmate trust account within thirty (30) days
of the date of that order, and that a failure to do so could
result in the dismissal of the case. Id.
correspondence received on December 5, 2017, Petitioner
explained that he seeks a federal writ against the Texas
Court of Criminal Appeals for improperly denying his state
habeas application. (See doc. 5.) He asserted that
this federal case was given a cause number that was not the
same cause number in the Court of Criminal Appeals, and that
he sent an IFP application to the Court of Criminal Appeals,
which should have forwarded it to this court. (Id.)
order dated December 11, 2017, explained that because
Petitioner was challenging his state conviction and sentence,
his initial filing was properly construed as a habeas corpus
petition under 28 U.S.C. § 2254. (See doc. 6.)
The order also explained that federal habeas review involves
a collateral review of the state conviction and sentence and
is not a direct appeal or continuation of the state court
proceedings. (Id.) Because this federal action is a
separate action from the state court criminal and habeas case
in a separate court system, it has its own cause number and
requires the filing of a separate IFP application.
(Id.) Petitioner was expressly advised that if he
wished to pursue his habeas case in this court, he must
comply with the November 16, 2017 Notice of Deficiency
and Order within 30 days of that order by filing an
amended petition on the appropriate form against a proper
respondent and submitting an IFP application with a current
certificate of inmate trust account or paying the $5 filing
fee. (Id.) He was also advised that failure to
comply could result in the dismissal of this action under
Federal Rule of Civil Procedure 41(b). (Id.)
than thirty days from the date of the November 16, 2017 order
have passed, but Petitioner has not filed a habeas petition
on the appropriate form, paid the filing fee, filed an IFP
application, or filed anything else in this case since the
entry of the December 11, 2017 order.
41(b) of the Federal Rules of Civil Procedure permits a court
to dismiss an action sua sponte for failure to
prosecute or follow orders of the court. McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (§
1983 prisoner action). This authority flows from a
court's inherent power to control its docket, prevent
undue delays in the disposition of pending cases, and avoid
congested court calendars. Link v. Wabash R.R. Co.,
370 U.S. 626, 629-31 (1962). Petitioner failed to comply with
the November 16, 2017 order that he file his § 2254
petition on the appropriate form and either pay the filing
fee or submit an IFP application despite warnings that
failure to do so could result in dismissal of the case. Since
the December 11, 2017 order that again advised him that he
must comply with the November 16, 2017 order if he wished to
proceed with the case, he has not filed anything else.
Because Petitioner failed to follow a court order or
otherwise show that he intends to proceed with this case, it
should be dismissed under Rule 41(b) for failure to prosecute
or follow orders.
case should be dismissed without prejudice under Fed.R.Civ.P.
41(b) for failure to prosecute or follow orders of the court,
unless the petitioner files his § 2254 habeas petition
on the appropriate form, and either pays the filing fee or
submits a completed IFP application within the time for
objecting to this recommendation, or by some other deadline
set by the court.
FOR SERVICE AND NOTICE OF ...