United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNILED STATES MAGISTRATE JUDGE
Jackson (Petitioner), a prisoner in state custody,
“PETITION[S] FOR A WRIT OF HABEAS CORPUS PURSUANT TO 12
OKL. ST. ANN. § 1332-1331” “IN THE DISTRICT
COURT OF Western COUNTY STATE OF OKLAHOMA[.]” Doc. 1,
at 1. Petitioner identifies a conviction in the
District Court of Oklahoma County, No. CRF-1984-4152, as the
“judgement of conviction under attack . . . .”
Id. The title of his pleading notwithstanding,
Petitioner “request[s] action by the federal
court.” Id. at 7 (emphasis added).
a preliminary review of the petition, the undersigned
notified Petitioner that if he intended to petition an
Oklahoma state court for habeas relief from his judgment of
conviction, he had mailed his petition to the wrong court.
See Doc. 4, at 1. The undersigned further explained
that if, on the other hand, it had been Petitioner's
intent to ask this United States District Court for habeas
relief under 28 U.S.C. § 2254, he had failed to use the
required form to do so. See Id. at 1-2. The
undersigned advised Petitioner that under this Court's
Local Civil Rule (LCvR) 9.2(a), all “[p]etitions for
writs of habeas corpus . . . by persons in state . . .
custody . . . shall be on forms provided by the clerk of this
court” and that the “[f]ailure to use said forms
or to supply the court with the equivalent information
required by the forms will result in the [petition] being
ordered stricken.” See Id. at 2.
the undersigned informed Petitioner that if he intended to
seek habeas relief from this Court under 28 U.S.C. §
2254, he was required to pay a $5 filing fee or be granted
leave to proceed without prepayment of such fee, and that he
had neither paid the filing fee nor applied for leave to
proceed in forma pauperis. See Id. (citing 28 U.S.C.
§§ 1914(a), 1915(a)(1); LCvR 3.2, 3.3(a)).
Petitioner the opportunity to cure these deficiencies if it
was his intent to seek habeas relief from this Court, the
undersigned directed the Clerk of Court to include a form
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2254, a form Application for Leave to Proceed In Forma
Pauperis, and a copy of this Court's Local Civil Rules
when mailing the order to cure deficiencies to Petitioner.
the undersigned issued the following warning:
For this habeas action to proceed in this Court,
Petitioner must cure the deficiencies noted above within
twenty-one days from the date of this Order, that is, on or
before Tuesday, March 19, 2019. The court cautions Petitioner
that his filings must be readable and that he must verify
under penalty of perjury that the facts alleged are true.
See 28 U.S.C. § 2242.
Petitioner's failure to comply with this Order
will result-without further warning-in a recommendation to
dismiss this action.
Id. at 2-3. According to the court's docket
report in this matter, the undersigned's order to cure,
as well as the forms and rules, were sent to the only address
Petitioner has provided to the court, and they have not been
returned to the court as undeliverable.
March 19, 2019 deadline to cure has passed, and he has not
taken steps to cure the noted deficiencies or to otherwise
show a continued interest in this matter. Despite the
undersigned's clear warning, Petitioner has simply failed
to communicate with the court in any manner.
Petitioner's exhibited lack of interest coupled with the
court's responsibility to manage and control its caseload
warrant dismissal of this action without prejudice. See
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1161 n.2, 1162 (10th Cir. 2007) (the court applies
Fed.R.Civ.P. 41(b) to allow sua sponte dismissal for
“failure to . . . comply with the rules of civil
procedure or court's orders”).
and Notice of Right to Object
reasons stated, the undersigned recommends the dismissal of
this action without prejudice to refiling.
undersigned advises Petitioner of his right to file an
objection to this Report and Recommendation with the Clerk of
Court on or before April 23, 2019, under 28 U.S.C. §
636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further
advises Petitioner that failure to file a timely objection to
this Report and Recommendation waives his right to appellate
review of both factual and legal issues contained herein.
See Moore v. United States, 950 F.2d 656, 659 (10th
undersigned directs the Clerk of Court to transmit a copy of
this Report and Recommendation through electronic mail to the
Attorney General of the State of Oklahoma ...