United States District Court, E.D. Oklahoma
JOE K. RICHARDS, Petitioner,
MICHAEL WADE, Warden, Respondent.
OPINION AND ORDER
A. While United States District Judge
19, 2017, Petitioner, a pro se state prisoner, filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 in the United States District Court for the
Northern District of Oklahoma (Dkt. 1). While the petition
was unclear, the Northern District Court found he apparently
was challenging the revocation of his parole and the
execution of his sentence(s) (Dkt. 2). Because Petitioner was
incarcerated within the territorial jurisdiction of the
Eastern District of Oklahoma when the petition was filed, the
action was transferred to this Court on August 7, 2017,
pursuant to Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996) (holding that a § 2241 petition
“attacks the execution of a sentence rather than its
validity and must be filed in the district where the prisoner
is confined”). Id.
response to this Court's Order, Petitioner filed a motion
for leave to proceed in forma pauperis on August 21,
2017 (Dkt. 7). The motion was denied, and Petitioner was
directed to pay the $5.00 filing fee by September 10, 2017,
or show cause by that date why he did not have sufficient
assets to pay the fee (Dkt. 9). Petitioner failed to pay the
filing fee as directed, and this action was dismissed without
prejudice on October 2, 2017 (Dkt. 10).
October 23, 2017, Petitioner filed a motion to reconsider the
dismissal of his case, because the filing fee was unpaid
“through no fault of his own” (Dkt. 12).
Petitioner alleged he submitted a disbursement to the staff
at his facility, and he believed the fee had been sent to the
Court. Id. He learned that the fee was not paid when
he received notice of the dismissal. Id. On January
19, 2018, the Court granted the motion to reconsider,
reopened the case, and ordered Petitioner to pay the filing
fee by February 8, 2018 (Dkt. 13). The fee, however, was not
paid, and this action again was dismissed without prejudice
on April 27, 2018 (Dkt. 14).
28, 2018, Petitioner filed a “motion to allow
petitioner to submit his $5.00 filing fee, ” again
alleging the filing fee was not paid “through no fault
of his own” (Dkt. 16). The Court construes this motion
as motion for relief from a judgment or order, pursuant to
Fed. R. Civ. P 60(b). Petitioner again claims he followed the
Department of Corrections procedures at his facility and
believed a check would be issued to the Court Clerk, until he
received the second notice of dismissal.
asserts that upon learning of the second dismissal of his
case, he submitted two Requests to Staff to the law library
on June 5, 2018, requesting a copy of the disbursement and
the date the fee was sent to this Court (Dkt. 16 at 5-6). The
June 6, 2018, responses to the Requests stated that the
disbursement request was “scanned to trust fund”
on February 9, 2018, and Petitioner had the disbursement.
Id. Petitioner next filed a grievance concerning
this issue on June 15, 2018. Id. at 7. He claims the
grievance was not answered, and he was advised that his
facility does not have access to the prisoners' trust
funds. Id. at 2-3.
pertinent portions of Rule 60(b) allow relief from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; .
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; . .
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “Rule 60(b) relief ‘is
extraordinary and may only be granted in exceptional
circumstances.'” Zurich North America v. Matrix
Service, Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)
(quoting Servants of Paraclete v. Does, 204 F.3d
1005, 1009 (10th Cir. 2000)). Furthermore, “[i]n a Rule
60(b) proceeding the motion is addressed to the sound
discretion of the [district] court.” Caribou Four
Corners v. Truck Ins. Exchange, 443 F.2d 796, 799 (10th
Cir. 1971) (citations omitted).
Court has carefully reviewed the record and construes
Petitioner's pleadings liberally. Haines v.
Kerner, 404 U.S. 519 (1972). Petitioner's
documentation indicates the filing fee was disbursed, but was
not forwarded to this Court. Therefore, his motion for relief
is GRANTED, and the Court Clerk is directed to REOPEN this
case. Petitioner, however, must pay the $5.00 filing fee
within thirty (30) days, and he must complete and submit
within thirty (30) days an amended petition for a writ of
habeas corpus on the Court's form. The officials at
Petitioner's facility are directed to collect and forward
the filing fee in accordance with this Order.
IT IS HEREBY ORDERED that:
Petitioner's motion to allow him to submit the filing fee
(Dkt. 16), which is construed as a motion for relief ...