United States District Court, D. Minnesota
COREY E. FISHERMAN, Petitioner,
TI G. WEST, Respondent.
REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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. 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.”).
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
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.
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
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. ...