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Howard v. State

United States District Court, W.D. Oklahoma

November 29, 2017

JEREMY ROBERT HOWARD, Petitioner,
v.
STATE OF OKLAHOMA, et al., Respondents.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         Petitioner, appearing pro se, attempted to initiate this action on August 21, 2017, by filing a document titled, “Notice to the Court that Petitioner Filed Post-Conviction Relief Application; Motion to Hold Habeas Corpus § 2254 Petition Briefing Time in Abeyance While the Lower District Court Rules on Said Referenced Application” [Doc. No. 1]. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate Judge Bernard M. Jones for initial proceedings.

         In his initial pleading, Petitioner asked the Court to hold his yet-to-be-filed habeas petition in abeyance while he exhausted his state court remedies [Doc. No. 1]. At the time of filing, Petitioner had not paid the required $5.00 filing fee nor submitted an application for leave to proceed in forma pauperis (“IFP”); he also had failed to file a habeas petition. In an August 28, 2017 Order to Cure Deficiency, Judge Jones directed Petitioner to cure these deficiencies [Doc. No. 4]. Petitioner filed a defective motion to proceed IFP on September 6, 2017 [Doc. No. 5]. The motion did not include a certified copy of the trust fund account statement signed by an authorized officer of the penal institution where Petitioner was incarcerated.

         In a September 18, 2017 Second Order to Cure Deficiencies, Judge Jones granted Petitioner additional time to cure the deficiencies and directed the court clerk to mail Petitioner the necessary forms to comply with the Order [Doc. No. 7]. Petitioner was cautioned that his failure to cure the deficiencies could result in dismissal of the action [Doc. No. 7].

         On September 21, 2017, Petitioner filed a Petition for Writ of Habeas Corpus [Doc. No. 8]. In a September 25, 2017 Order, Judge Jones granted Petitioner until October 16, 2017, to cure the deficiencies in his Motion for Leave to Proceed IFP [Doc. No. 9].

         On November 1, 2017, Judge Jones filed a Report and Recommendation (“Report”) [Doc. No. 10], recommending that Petitioner's action be dismissed without prejudice to refiling. Specifically, Judge Jones noted that Petitioner had “twice been warned” that his failure to pay the filing fee or submit an application to proceed IFP with the appropriate supporting documentation could result in dismissal of the action [Doc. No. 10 at 2].

         In his Report, Judge Jones advised Petitioner of his right to object and directed that any objection be filed on or before November 21, 2017. [Doc. No. 10 at 3]. Judge Jones further advised Petitioner that any failure to object would result in a waiver of the right to appellate review. Id.

         Within the time limits imposed, Petitioner filed his Objection to Magistrate Judge's Report and Recommendation [Doc. No. 11] on November 16, 2017. Petitioner, however, did not address in his objections his failure to cure the deficiencies in his Motion for Leave to Proceed IFP. Section 636(b)(1) requires the Court only to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3).

         I. Motion for Leave to Proceed IFP

         Petitioner was warned at least twice by Judge Jones of the specific deficiencies in his Motion for Leave to Proceed IFP and granted additional time to cure those deficiencies. [Doc. Nos. 4, 7, 9]. To date, however, he has not paid the requisite filing fee or submitted a certified copy of the trust fund account statement signed by an authorized officer.[1] See 28 U.S.C. § 1915(a)(2). Moreover, Judge Jones cautioned Petitioner that his failure to cure the deficiencies could result in the dismissal of this action without prejudice to refiling. Section 1915(a)(2) and the Local Court Rules are clear about these requirements. See LCvR3.3.

         Proceeding IFP in a civil case “is a privilege, not a right - fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). “It is incumbent on litigants, even those proceeding pro se, to follow the federal rules of procedure.” Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir. 1980). Moreover, the Court must manage its caseload and enforce the Local Court Rules and its own orders. See Id.

         The Court agrees with Judge Jones that Petitioner's failure to correct the deficiencies warrants dismissal of this case without prejudice. Pursuant to Fed.R.Civ.P. 41(b), the Court may dismiss an action where the petitioner fails to comply with court rules or a court order. See also AdvantEdge Bus. Group v. Thomas E. Mestmaker & Associates, Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (dismissal without prejudice warranted as sanction for failure to comply with local or federal procedural rules); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005) (dismissal appropriate where party disregards court orders and fails to proceed as required by court rules).

         II. Motion for Stay and Abeyance

         Petitioner objects to Judge Jones' recommendation that Petitioner's motion for stay and abeyance be denied. [Doc. No. 11 at 2]. Petitioner asserts that his motion [Doc. No. 1] and attached form affidavit [Doc. No. 1-1] legally suffice to toll the time limitations under the Antiterrorism and Effective ...


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