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Detrinidad v. State of Florida

United States District Court, S.D. Florida

May 20, 2019

CESAR R. DETRINIDAD, Petitioner,
v.
STATE OF FLORIDA, Respondent.

          CESAR R. DETRINIDAD, PRO SE

          SUA SPONTE REPORT OF MAGISTRATE JUDGE DISMISSING STATE HABEAS PETITION - 28 U.S.C. § 2554

          REID MAGISTRATE JUDGE.

         I. Introduction

         The Petitioner's wife, Anna Stacia DeTrinidad, has filed this pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on behalf of her husband, Cesar DeTrinidad, challenging the constitutionality of his arrest in Broward County Circuit Court, No. 19005253CF10A. It is unclear whose signature is on the last page under the certificate of service.

         This cause has been referred to the undersigned for consideration and report, pursuant to 28 U.S.C. § 636(b)(1)(B), (C); S.D. Fla. Local Rule 1(f) governing Magistrate Judges; S.D. Fla. Admin. Order 2019-02; and the Rules Governing Habeas Corpus Petitions in the United States District Courts.

         Because it is evident that Petitioner's wife does not have standing to bring this action and summary dismissal is warranted, no order to show cause has been issued. See Rule 4, Rules Governing Section 2254 Proceedings; see also, See e.g., Broadwater v. United States, 292 F.3d 1302, 1303-04 (11th Cir. 2002). A district court may sua sponte dismiss a habeas petition where the one-year limitations period has expired. See Day v. Crosby, 391 F.3d 1192 (11th Cir. 2004)(citing Jackson v. Sec'y for the Dep't of Corr's, 292 F.3d 1347, 1349 (11th Cir. 2002)).

         II. Procedural History

         According to the petition the Broward Sheriff's office arrested Plaintiff on April 23, 2019. (DE# 1:1). Petitioner's wife claims the arrest was made pursuant to an unlawful unsigned warrant. (DE# 1:1). According to the docket, the state court conducted a hearing on April 24, 2019 and found probable cause for the arrest. (Broward County Circuit Court Docket, No. 19005253CF10A).[1] On April 24, 2019, Petitioner's wife filed the instant petition in this court. (DE#1).

         III. Discussion and Applicable Law

         The Federal Rules of Civil Procedure provide that an incompetent person who does not have a duly appointed representative may sue by a “next friend.” Fed.R.Civ.P. 17(c)(2). However, the plaintiff has the burden to establish standing to proceed on behalf of the real party and thereby to invoke the jurisdiction of the federal courts. Whitmore v. Arkansas, 495 U.S. 149, 162 (1990).

         In Whitmore, the Supreme Court detailed the requirements, stressing that next friend standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another.” Whitmore, 495 U.S. at 163. First, the would-be next friend must prove that the real party in interest cannot pursue his own cause due to some disability such as mental incompetence or lack of access to court. Id. at 163-65. Second, the next friend must show some relationship or other evidence that would suggest that the next friend is truly dedicated to the interests of the real party in interest. Id. at 163-64. Ultimately, "the burden is on the 'next friend' clearly to establish the propriety of [her] status, and thereby justify the jurisdiction of the court." Id. at 164.

         Even if Anna Stacia DeTrinidad could establish that she should be permitted to proceed as “next friend” she cannot proceed pro se to represent her husband. See Weber v. Garza, 570 F.2d 511, 513 (5th Cir. 1978)(“individuals not licensed to practice law by the state may not use the ‘next friend' devise as an artifice for the unauthorized practice of law”). In a similar situation the Eleventh Circuit found that a mother, who was not an attorney, could not act as legal counsel for her minor child. Fuqua v. Massey, 615 Fed.Appx. 611 (11th Cir. 2015)(citing Devine v. Indian River Cnty. Sch Bd., 121F.3d 576, 581 (11th Cir. 1997). She does not allege that she is a licensed attorney. Since Anna Stacia DeTrinidad is not an attorney for the named Plaintiff, any pleadings and or motions filed by her are a nullity.

         A dismissal without prejudice does not prevent a party from amending the complaint nor does it prevent a real party from asserting his habeas claims if he is able to litigate his own cause.[2]

         IV. Certificate ...


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