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Fisherman v. West

United States District Court, D. Minnesota

March 13, 2019

COREY E. FISHERMAN, Petitioner,
v.
TI G. WEST, Respondent.

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE

         On January 24, 2019, petitioner Corey E. Fisherman submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of a robbery conviction incurred in state court. See Petition [Docket No. 1]. Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a habeas corpus petition “specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground.” Fisherman's petition, by contrast, stated only that he “would like to vacate [his sentence].” Petition at 5. Nowhere did Fisherman set forth the specific grounds upon which he believed he was entitled to relief from his conviction or sentence. Accordingly, this Court ordered Fisherman to submit an amended habeas corpus petition by no later than March 1, 2019, that set forth his claims for relief consistent with the Rules Governing Section 2254 Cases, failing which it would be recommended that the matter be dismissed without prejudice for failure to prosecute. See Docket No. 3.

         This Court has since received from Fisherman a “motion for downward dispositional or durational departure” that appears to have been filed originally in state court; the motion is addressed to that court and dated June 19, 2017, well before the commencement of this action. See Docket No. 7. In a letter filed contemporaneous with that motion, Fisherman states that “I've sent all documents suggested what I've ask for in the documents set forth.” Docket No. 8-1 at 1 (spelling corrected but otherwise sic throughout).

         The problem is that it is not enough that Fisherman has “suggested” what claims he intends to raise in these habeas corpus proceedings. As stated above, Rule 2(c) requires that a habeas corpus petitioner “specify all the grounds for relief” in his petition (emphasis added). This rule protects both parties. The respondent cannot easily answer a habeas petition in which the claims being raised have been left unclear. Just as importantly, though, a clear statement of the specific claims being raised ensures that all such claims are adjudicated appropriately - a necessary protection for the habeas corpus petitioner, who rarely is afforded a second bite at the apple. See 28 U.S.C. § 2244(b). Both parties' interests are endangered when a petitioner submits a vague habeas petition and a handful of state-court documents while suggesting that his claims are to be found somewhere within, as Fisherman has in effect done here.

         This Court previously warned Fisherman that failure to submit an amended habeas corpus petition that complies with the Rules Governing Section 2254 Cases would result in a recommendation that this matter be dismissed without prejudice for failure to prosecute. See Docket No. 3. Fisherman has not complied with that order. Accordingly, this Court now recommends, in accordance with its prior order, that this action be dismissed without prejudice under Rule 41(b) for failure to prosecute.[1] See Henderson v. Renaissance Grand Hotel, 267 Fed. App'x 496, 497 (8th Cir. 2008) (per curiam) (“A district court has discretion to dismiss an action under Rule 41(b) for a plaintiff's failure to prosecute, or to comply with the Federal Rules of Civil Procedure or any court order.”).

         Two matters merit further comment:

First, should the petition be dismissed as recommended, Fisherman's application to proceed in forma pauperis may also be denied. See Kruger v. Erickson, 77 F.3d 1071, 1074 n.3 (8th Cir. 1996) (per curiam).
Second, a § 2254 habeas corpus petitioner cannot appeal an adverse ruling on his petition unless he is granted a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA cannot be granted unless the petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, it is highly unlikely that any other court, including the Eighth Circuit Court of Appeals, would treat Fisherman's current habeas corpus petition differently than it is being treated here. Fisherman has not identified, and this Court cannot discern, anything novel, noteworthy or worrisome about this case that warrants appellate review. It is therefore recommended that Fisherman should not be granted a COA in this matter.

         RECOMMENDATION

         Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED:

1. This matter be DISMISSED WITHOUT PREJUDICE for failure to prosecute.
2. Petitioner Corey E. Fisherman's application to proceed in forma pauperis [Docket No. 2] be DENIED.
3. Fisherman's motion for downward dispositional or durational departure [Docket No. ...

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