Simpson v. Jeffreys ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA ARTHUR C. SIMPSON, Petitioner, 8:23CV260 vs. MEMORANDUM AND ORDER NEBRASKA, Respondent. This matter is before the Court on Petitioner’s “Motion the Court for time exten[s]ion,” which the Court has docketed as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Filing No. 1. Petitioner asks for an extension “in the matter of fileing [sic] his habeas corpus in the Federal Courts.” Id. at 1. The Court hereby notifies Petitioner that it intends to characterize his pleading entitled “Motion the Court for time exten[s]ion” as an actual 28 U.S.C. § 2254 habeas petition. In the alternative, Petitioner may move to voluntarily withdraw his habeas corpus petition within 30 days. See Castro v. United States, 540 U.S. 375, 382–83 (2003) (requiring notice, warning, and opportunity to amend or withdraw before recharacterization of pro se litigant’s motion as initial § 2255 motion; when these requirements unsatisfied, recharacterized motion not considered § 2255 motion rendering later motion successive); see also Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004) (applying Castro to § 2254 petition). Should Petitioner decide to allow this action to proceed as one brought pursuant to Section 2254, he should be aware of his obligation to raise all his habeas corpus claims in this action. This is because there is a statutory prohibition against successive petitions by state prisoners codified in 28 U.S.C. § 2244. In addition, if Petitioner decides to allow this action to proceed as a § 2254 habeas action, then he must amend his pleading to cure the following deficiencies. First, Petitioner has not signed the petition under penalty of perjury. See, e.g. 28 U.S.C. § 2242 and Rule 2(c)(5) of the Rules Governing Section 2254 Cases in the United States District Courts. Second, a habeas corpus petition must “substantially follow either the form appended to [the Rules Governing Section 2254 Cases in the United States District Courts], or a form prescribed by a local district-court rule.” See Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts. To that end, a copy of the Form AO 241, Petition for Writ of Habeas Corpus by a Person in State Custody, will be provided to Petitioner along with this order. Finally, if Petitioner decides to allow this action to proceed, then he also must either submit the $5.00 fee to the Clerk’s office or submit a request to proceed in forma pauperis. If Petitioner chooses to do the latter, the enclosed pauper’s forms should be completed and returned to this Court. IT IS THEREFORE ORDERED that: 1. Petitioner shall no later than July 17, 2023, voluntarily withdraw his pleading entitled “Motion the Court for time exten[s]ion” if he does not want this action to proceed as one brought pursuant to 28 U.S.C. § 2254. 2. If Petitioner decides to allow this action to proceed as one brought pursuant to 28 U.S.C. § 2254, he must file an amended petition for writ of habeas corpus that is originally signed under penalty of perjury no later than July 17, 2023, unless the Court extends the time in which he has to amend in response to a written motion. Petitioner must set forth all his claims in an amended petition for writ of habeas corpus, even those identified in his original petition. 3. Petitioner shall no later than July 17, 2023, submit the $5.00 filing fee to the Clerk’s office or submit a request to proceed in forma pauperis if he intends to pursue this matter. 4. If Petitioner fails to respond to this order or file an amended petition, the Court will construe Petitioner's pleading as a petition filed pursuant to 28 U.S.C. § 2254 and this matter will be dismissed without prejudice and without further notice to Petitioner for the deficiencies described herein. 5. The Clerk of the Court is directed to send to Petitioner the Form AO240 (“Application to Proceed Without Prepayment of Fees and Affidavit’) and the Form AQ241 (“Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus”). 6. To avoid confusion, any document Petitioner sends to the Clerk of the Court for filing in this case must clearly display the case number (8:23CV260). 7. The Clerk of the Court is directed to set the following pro se case management deadline: July 17, 2023: check for (1) MIFP or payment and (2) motion to withdraw or amended habeas petition. Dated this 16th day of June, 2023. BY THE COURT: C4 FF Shit Joseph F. Bataillon Senior United States District Judge