Twitty v. Wiley

FILED
United States Court of Appeals
Tenth Circuit
June 19, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ANDRE J. TWITTY,
Petitioner-Appellant,
v. No. 09-1008
RONNIE WILEY, (D.C. No. 1:08-CV-02119-ZLW)
(D. Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, HOLLOWAY and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
Andre J. Twitty, a federal prisoner appearing pro se, seeks review of the
district court’s dismissal of his action alleging Fifth and Eighth Amendment
violations. After a careful review of Twitty’s brief, the record on appeal, and the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
district court’s disposition, we affirm. Additionally, Twitty’s request for leave to
proceed on appeal in forma pauperis is denied.
In 1999, a jury convicted Twitty of wilfully communicating a bomb threat
via the telephone and threatening federal law enforcement officers and their
immediate family members. He was sentenced to 180 months’ imprisonment and
three years of supervised release. His conviction and sentence were affirmed on
direct appeal. United States v. Twitty, No. 99-12706, 31 Fed. App’x 934 (11th
Cir. Jan. 8, 2002) (unpublished table decision), cert. denied, 535 U.S. 1029(2002). Twitty has since filed numerous petitions for relief under 28 U.S.C. §§
2241 and 2255.
The district court identified deficiencies in Twitty’s pleadings, titled
“Motion to Reverse Illegal Conviction, Judgment Void, Lack of Subject Matter,
Want of Jurisdiction Brief in Support” and “Motion to Vacate Illegal Conviction,
Judgment Void, Want of Jurisdiction, Recusal of Judge(s) Weinshienk Boland
Pursuant to 28 U.S.C. § 144, 455(a), Brief in Support,” and gave Twitty thirty
days to cure the deficiencies. Specifically, Twitty was instructed to either pay the
five dollar filing fee or submit on the proper court-approved form a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Twitty
was also instructed to submit on the proper court-approved form an Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. While Twitty complied
with some of the court’s instructions, he failed within the time allowed to submit
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the required certified copy of his trust fund account statement for the six-month
period immediately preceding his filing. 1 The district court denied Twitty’s §
2241 application and dismissed the action without prejudice for failure to cure all
of the enumerated deficiencies.
Twitty’s opening appellate brief merely lists constitutional amendments and
cases, and repeatedly advises us to “read the record and files and law” and “read
the file.” Aplt. Br. at 2, 4. Although Haines v. Kerner, 404 U.S. 519 (1972),
requires our liberal reading of pro se pleadings, the petitioner must give us
something to read liberally. We cannot create an argument for a petitioner where
no hint of an argument is provided. Twitty provides no argument in support of
the issues raised. Such briefing is inadequate to challenge the rulings made by
the district court.
Rule 28 of the Federal Rules of Appellate Procedure requires the appellant
to submit a brief with “argument, which must contain appellant’s contentions and
the reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). Furthermore, “[w]e do
1
Rule 3 of the Rules Governing Section 2254 Cases in the United States
District Courts requires an inmate to file “a certificate from the warden or other
appropriate officer of the place of confinement showing the amount of money or
securities that the petitioner has in any account in the institution.” Rule 1(b)
applies this rule to other habeas corpus applications, including one pursuant to 28
U.S.C. § 2241. The Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action notes the requirement
for a certified copy of an inmate’s trust fund account.
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not consider merely including an issue within a list to be adequate briefing.”
Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th
Cir. 2002). Accordingly, we affirm the district court’s denial of Twitty’s § 2241
application and its dismissal of this action without prejudice.
Finally, we deny Twitty’s motion to proceed in forma pauperis. 2 We have
reviewed his opening brief and cannot discern a reasoned, non-frivolous argument
on the law and facts in support of the issues he proposes to raise. His request to
proceed in forma pauperis is denied. 28 U.S.C. § 1915(e)(2)(B).
The judgment of the district court is AFFIRMED. The request to proceed
in forma pauperis on appeal is DENIED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
2
Although Twitty has “three strikes” under the Prisoner Litigation Reform
Act, 28 U.S.C. § 1915(g), the three-strike restriction does not apply to § 2241
petitions. Jennings v. Natrona County Det. Ctr. Med. Fac., 175 F.3d 775, 780-81
(10th Cir. 1999). However, Twitty is cautioned to refrain from further filings
pursuant to § 2241 which attempt to challenge this same conviction and sentence.
This court has the authority to limit Twitty’s access to the court when his filings
are only a repeat of pleadings previously filed. Tripati v. Beaman, 878 F.2d 351,
353-54 (10th Cir. 1989).
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