United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this pro se prisoner case has
been automatically referred for findings, conclusions, and
recommendation. Before the Court is the plaintiff's
post-judgment Motion for Released [sic] on Parole,
received on January 11, 2018 (doc. 31). Based on the relevant
filings and applicable law, the filing should be construed as
a new habeas petition under 28 U.S.C. § 2254, opened as
a new case, and administratively closed.
plaintiff filed a complaint under 42 U.S.C. § 1983
against the defendants based on their roles in the
prosecution, conviction, appellate review, and incarceration
regarding his June 9, 1993 convictions in Cause Numbers
91-45041, 92-36477, 92-36482, and 93-01488. (See
docs. 2 at 3-4, 15 at 1.) It was dismissed as frivolous on
September 5, 2017. (See docs. 19, 20.) His appeal
was dismissed by the Fifth Circuit Court of Appeals for
failure to pay the filing fee. (See doc. 24);
Whaley v. Court of Criminal Appeals, No. 17-11013
(5th Cir. Nov. 1, 2017). His motion for relief from judgment
under Fed.R.Civ.P. 60(b) was denied on December 19, 2017.
(See doc. 30.) His new filing contends that there
was no evidence to support his convictions, asks that the
state court judgments be set aside, and seeks his release
pending an evidentiary hearing. (See doc. 31 at 1,
NATURE OF SUIT
the plaintiff's filing expressly challenges his state
confinement, it is properly construed as a habeas petition
under 28 U.S.C. § 2254. See Preiser v.
Rodriguez, 411 U.S. 475, 487 (1973) (a prisoner seeking
to challenge the fact or duration of confinement may only do
so within the exclusive scope of habeas corpus). The filing
should be opened as a new habeas case.
PRIOR SANCTIONS ORDER
plaintiff/petitioner, a state inmate of the Texas Department
of Criminal Justice (TDCJ), is a vexatious litigant who has
filed numerous cases in this Court and in the Fifth Circuit
challenging his 1993 state convictions, even after being
warned that he could be subject to sanctions if he continued
to file either successive habeas petitions in federal
district court or frivolous motions for authorization to file
a successive habeas petition in the Fifth Circuit. See In
re Whaley, No. 07-10495 (5th Cir. July 11, 2007);
Whaley v. Quarterman, No. 3:09-CV-888-B (N.D. Tex.
June 2, 2009). As a result, the Fifth Circuit has sanctioned
him $150 and barred him from filing, in any court subject to
the Fifth Circuit's jurisdiction, “any challenge to
his conviction or sentence until the sanction has been paid
in full, unless he first obtains leave of the court in which
he seeks to file such challenge.” In re
Whaley, No. 11-10180 (5th Cir. April 28, 2011); see
Whaley v. Stephens, No. 3:14-CV-803-P (N.D. Tex. May 21,
2014) (denying leave to file federal habeas petition based on
Fifth Circuit's sanctions order).
Court enforces sanctions imposed by the Fifth Circuit Court
of Appeals. Spearman v. Fulbruge, No.
3:07-CV-1945-B-BH, 2008 WL 89515, at *2 (N.D. Tex. Jan. 7,
2008) (accepting recommendation of Mag. J.). The petitioner
has not provided any proof that he has paid the $150 monetary
sanction, and he has not sought leave of this Court to file
another habeas petition challenging his state convictions.
Accordingly, the Clerk's Office should file a copy of the
Fifth Circuit sanction order in No. 11-10180 in the new
habeas case and administratively close it for failure to
comply with that order.
post-judgment motion (doc. 31) should be construed as a new
28 U.S.C. § 2254 habeas petition, and the Clerk of Court
should be DIRECTED to: (1) terminate the
motion in this civil rights case; (2) open a new habeas case
for administrative purposes only; (3) docket the motion in
that new case as a § 2254 petition filed on January 11,
2018; (4) directly assign the new case to the same District
Judge and Magistrate Judge as in this case; (5) file in the
new case a copy of these Findings, Conclusions, and
Recommendation of the United States Magistrate Judge, any
order accepting these Findings, Conclusions, and
Recommendation, and a copy of the Fifth Circuit's
sanctions order in No. 11-10180; and (6)
ADMINISTRATIVELY CLOSE the new case for
failure to comply with the sanctions order.
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
United States District Clerk shall serve a copy of these
findings, conclusions, and recommendation on all parties by
mailing a copy to each of them. Pursuant to 28 U.S.C. §
636(b)(1), any party who desires to object to these findings,
conclusions and recommendation must file and serve written
objections within fourteen days after being served with a
copy. A party filing objections must specifically identify
those findings, conclusions, or recommendation to which
objections are being made. The District Court need not
consider frivolous, conclusory or general objections. Failure
to file written objections to the proposed findings,
conclusions, and recommendation within fourteen days after
being served with a copy shall bar the aggrieved party from
appealing the factual findings and ...