United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND DENYING MOTION FOR RELIEF
CLARK, UNITED STATES DISTRICT JUDGE
Petitioner Ernest Edward Gaines filed this petition for the
writ of habeas corpus under 28 U.S.C. §2254 apparently
complaining of improper taking of his property. This Court
referred the case to the United States Magistrate Judge
pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of
Duties to United States Magistrate Judges.
filed his petition under 28 U.S.C. §2254, which provides
an avenue for relief for persons in custody under the
judgment of a state court. Although he refers to a 2006
conviction for aggravated robbery from Dallas County, Texas,
the grounds for relief set out in his petition concern the
damaging or confiscation of his property. Such claims do not
implicate the legality of Gaines' custody and thus are
not cognizable in habeas corpus. See Cook v.
Hanberry, 596 F.2d 658, 660 n. 1 (5th Cir. 1979);
Pierre v. U.S., 525 F.2d 933, 936 (5th Cir. 1976).
Magistrate Judge directed Gaines to file an amended petition
setting out a short and plain statement of his claim.
See Rule 2(c) of the Rules Governing §2254
Petitions in the United States District Courts (stating that
a habeas corpus petition must specify all of the grounds for
relief available to the petitioner, the facts supporting each
ground, and the relief requested). When Gaines did not
respond to this order, the Magistrate Judge issued a Report
recommending that the petition be dismissed without prejudice
for failure to prosecute or to obey an order of the Court.
Gaines received a copy of this Report but when no objections
were received, the petition was dismissed without prejudice.
then filed a motion to alter or amend the judgment under
Fed.R.Civ.P. 59(e). This motion asserted that Gaines had
mailed objections to the Magistrate Judge's Report, but
that these were not received by the Court “due to fraud
by a member of the opposing party.”
attached a copy of his objections to the motion for relief
from judgment. These objections stated that Gaines had not
consented to the referral of the petition to the Magistrate
Judge and argued that his claim for unlawful seizure of
property was cognizable in habeas corpus.
The Report of the Magistrate Judge
reviewing Gaines' motion to alter or amend the judgment,
the Magistrate Judge issued a Report recommending that the
motion be denied. The Magistrate Judge stated that the
petition was dismissed because Gaines did not respond to an
order directing that he amend his petition. Thus, the
Magistrate Judge determined that he had failed to prosecute
his case or to obey the order directing amendment. Neither
Gaines' motion to alter or amend nor the attached
objections mention the basis upon which the petition was
Magistrate Judge observed that while Gaines contended his
claim of seizure of property was cognizable in habeas corpus,
this was incorrect because the taking of property did not
itself implicate the fact or legality of his detention.
See Preiser v. Rodriguez, 411 U.S. 475, 484, 93
S.Ct. 1827, 36 L.Ed.2d 439 (1973). The Magistrate Judge
further concluded that Gaines' complaint that he did not
consent to the referral of the case lacked merit because no
consent is required for a referral of preliminary matters to
the Magistrate Judge in accordance with 28 U.S.C.
§636(b). Newsome v. EEOC, 301 F.3d 227, 230
(5th Cir. 2002).
Gaines' Response to the Report
filed a response to the Report entitled
“Petitioner's objection to Report and
Recommendation and request to amend and correct the
error.” In this response, Gaines states that he was
advised to file his petition under 28 U.S.C. §2254 and
followed this advice, and he blindly took this advice and
failed to search for a more knowledgeable person to help him.
He asks that he be allowed to correct his pleadings and to
file his complaint under 42 U.S.C. §1983.
Discussion and Conclusion
correctly recognizes that his claim of improper seizure of
property is not cognizable in habeas corpus, but should
proceed under 42 U.S.C. §1983. The habeas corpus
petition which he filed was dismissed without prejudice,