United States District Court, S.D. Florida
CESAR R. DETRINIDAD, Petitioner,
STATE OF FLORIDA, Respondent.
R. DETRINIDAD, PRO SE
SUA SPONTE REPORT OF MAGISTRATE JUDGE DISMISSING
STATE HABEAS PETITION - 28 U.S.C. § 2554
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.
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.
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)).
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). On April 24, 2019, Petitioner's wife
filed the instant petition in this court. (DE#1).
Discussion and Applicable Law
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).
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.
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.
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