United States District Court, N.D. Florida, Panama City Division
MICHAEL C. DESUE, Petitioner,
STATE OF FLORIDA, SECRETARY MR. MARK INCH OF THE DEPARTMENT OF CORRECTIONS, RECORDS CUSTODIAN LINDA SANTANA, Respondents.
ORDER AND REPORT AND RECOMMENDATION
THAI CANNON UNITED STATES MAGISTRATE JUDGE
Michael C. DeSue (“DeSue”), initiated this case
by filing an “Emergency Writ of Complaint to Order
Complainant Discharged from False Imprisonment by Florida
Department of Corrections Where State Public Officials Forged
and Falsified His Commitment Papers and Allowed Forged
Official Documents To Be Passed Upon Their Agency in
Conspiracy by Government Branches” (the
“Writ”). ECF Doc. 1. The clerk docketed the Writ
as a petition for habeas corpus relief under 28 U.S.C. §
2254, and the matter was referred to the undersigned
Magistrate Judge for preliminary screening and report and
recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla.
Loc. R. 72.2(B).
screening the Writ, the undersigned determined it was a
successive § 2254 petition. ECF Doc. 6. Because it was
not immediately clear whether DeSue sought to bring this
action under § 2254 or as a § 1983 claim, the
undersigned ordered DeSue to show cause why his Writ should
not be construed as an application for habeas corpus under
§ 2254 and dismissed as a second or successive
August 22, 2019, DeSue provided a response to the order to
show cause, ECF Doc. 7, and also filed a “Motion for
Leave to Amend Writ of Complaint.” ECF Doc. 8. On
August 29, 2019, DeSue filed an “Amended Writ of
Complaint to Order Complainant Discharged from False
Imprisonment by Secretary of the Department of Corrections
where his Detention was Procured by Fraud by the Department
of Corrections” (“Amended Writ”). ECF Doc.
9. As an initial matter, Petitioner need not seek leave from
this Court to amend his Writ as the amendment comes prior to
service. See Fed. R. Civ. P. 15(a);
see also Mayle v. Felix, 545 U.S. 644, 655 (2005)
(applying Rule 15 to habeas actions). Thus, the motion for
leave to amend, ECF Doc. 8, will be granted. After carefully
considering the Amended Writ, the undersigned recommends this
matter be dismissed as a second or successive petition under
28 U.S.C. § 2244(b)(1) and Rule 9 of the Rules Governing
Section 2254 Cases.
the original Writ, ECF Doc. 1, DeSue files the Amended Writ
seeking “an order of discharge from the custody of
Secretary Mr. Mark Inch of the Department of Corrections
where his detention was procured by record fraud.” ECF
Doc. 9 at 1. As with the original Writ, the Amended Writ is
based on a judgment of conviction under Case Number 92-0266.
Among other allegations, DeSue claims that Bay County Circuit
Court public officials “did forge the April 23, 1992
Amended Information listing the Robbery as Count II and
Robbery with a Firearm as Count III as being connected
offenses to No. 92-0266 … to fabricate jurisdiction
that had been lost.” Id. at 3. He concludes
that “Under Article I Section 15 Fla. Constitution the
Bay County Circuit Court could not [have] tried the
Complainant under No. 92-0266 for Robbery with a Firearm and
in a separate and subsequent trial for Robbery under No.
92-0266, as a ‘matter of law.'” Id.
at 4. Thus, DeSue continues, “[t]he verdict entered
under No. 92-0266 on June 30, 1992 for Robbery with a Firearm
by jury foreperson “Bonnie Blue” is a
‘nullity,' and the No. 92-0266 July 1, 1992 jury
verdict for Robbery signed by jury foreperson “Charles
Spencer” is a ‘nullity.'” Id.
at 4-5. DeSue then contends that the sentencing judge, the
assistant state attorney, the defense attorney, a Department
of Corrections employee, clerk of court, the Department of
Corrections records custodian and a deputy sheriff either
forged documents or knowingly used forged documents to commit
DeSue to 27 years imprisonment. Id. at 4-7. These
are virtually the same allegations he made in his original
Writ. ECF Doc. 1 at 2-5. He concludes in the Amended Writ
that “[t]he Writ of Complaint requires Complainant to
be discharged from the Department of Corrections by an
emergency order where his false imprisonment is procured by
fraud.” ECF Doc. 9 at 19. DeSue does not seek monetary
damages as he did in the original Writ, making it even
clearer that he is not seeking to file a claim under 42
U.S.C. § 1983. Compare ECF Doc. 9 at 19
with ECF Doc. 1 at 11.
The Amended Writ is a Successive 28 U.S.C. § 2254
Sua Sponte Dismissal Under Rule 4 is Appropriate.
of the Rules Governing Section 2254 Cases in the United
States District Courts requires the Court to dismiss a
petition prior to service “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court.” See
Borden v. Allen, 646 F.3d 785, 810 (11th Cir.
2011). In reviewing a petition under Rule 4, a federal habeas
court may also take judicial notice of state court records,
its own records and records of an appellate court. See
e.g., Paez v. Sec'y Fla. Dept. of Corr., -- F.3d --,
2019 WL 3433069, at *2 (11th Cir. July 31, 2019)
(citing Moore v. Estelle, 526 F.2d 690, 694
(5th Cir. 1976)) (recognizing propriety of taking
judicial notice of prior habeas proceedings in connection
with same conviction even with case is not part of the record
on appeal under Fed.R.Evid. 201); Allen v. Newsome,
795 F.2d 934, 938 (11th Cir. 1986) (holding court
can take judicial notice of prior § 2254 applications);
Barber v Cockrell, 2002 WL 63079, at *1 n.4 (N.D.
Tex. Jan. 8, 2002) (taking judicial notice of its own records
on prior habeas petition); United States ex. Rel Martin
v. Gramley, 1998 WL 312014, at *1 (N.D. Il. June 3,
1998) (taking judicial notice of opinions of appellate court
in Rule 4 dismissal).
allows district courts to sua sponte dismiss a
petition for habeas relief on grounds that go to the merits
of the petition, such as jurisdictional issues. See
Paez, 2019 WL 3433069, at *4 (holding that dismissal
under Rule 4 not applicable to non-jurisdictional procedural
bars such as timeliness); Nash v. Beard, 2006 WL
2988941, *1 n.2 (M.D. Pa. Oct. 17, 2006) (taking judicial
notice of related official court filings in dismissing
petition under Rule 4 as successive); McMillan v.
Cooks, 2018 WL 6835918, at *1 (S.D. Ala. Nov. 16, 2018)
(dismissing petition under Rule 4 on grounds that court
lacked jurisdiction over unauthorized second or successive
petition); Roberts v. Noe, 2019 WL 1905176, at *1
(N.D. Ala. Apr. 15, 2019) (same).
DeSue Has Filed a Prior Application for Habeas Corpus Relief
That Was Dismissed with Prejudice
explained in the order to show cause, DeSue previously filed
an application under section 2254, making the same arguments
he makes in the instant case - that his conviction in Bay
County Circuit Court No. 92-0266 is invalid because of
forgery and fraud. See ECF Doc. 6 (citing DeSue
v. Singletary, 5:97cv278-RH-SMN (N.D.
Fla)). In 2000, the Eleventh Circuit dismissed
that petition, on appeal, with prejudice as untimely filed.
ECF Doc. 42 in 5:97cv278 and ECF Doc 46 in 5:97cv278 at 2.
DeSue then applied to the Eleventh Circuit for permission to
file a successive petition. See ECF Doc. 44 of
5:97-cv-278 (citing In re Michael DeSue, United
States Court of Appeals, Eleventh Circuit, No. 12-12870-A).
In that application, DeSue identified the judgment of
conviction under attack as including 92-0266, and his first
habeas petition as to that judgment as being filed in case
number 5:97-cv-278. See Application, No. 12-12870-A.
The Eleventh Circuit denied DeSue's application.
See June 20, 2012 Order in No. 12-12870-A.
Undeterred, DeSue filed a second application to file a
successive petition almost two years later. In his second
application, DeSue identified the judgment of conviction
under attack as Case Number 09-0266 and his first habeas
petition as having been filed in 5:97-cv-278. See
Id. The Eleventh Circuit also denied the second
application. See June 16, 2014 Order, in No.
second petition to be successive, the first petition must
have been denied or dismissed with prejudice. See
Guenther v. Holt, 173 F.3d 132, 1329 (11th
Cir. 1999). Because the Eleventh Circuit, on appeal,
dismissed DeSue's prior petition as untimely - it was a
dismissal with prejudice. See e.g., Candelario v.
Warden, 592 Fed.Appx. 784, 785 n.1 (11th Cir.
2014) (dismissal of a habeas petition as time-barred is a
judgment on the merits); Jordan v. Sec'y, Dept. of
Corr., 485 F.3d 1351, 1353 (11th Cir. 2007 (a
dismissal for untimeliness is with prejudice).
the court must look to the judgment being challenged to
determine if a petition is successive. See Patterson v.
Sec'y, Fla. Dept. of Corr., 849 F.3d 132, 1324
(11th Cir. 2017). The judgment that matters is the
judgment authorizing the prisoner's confinement. See
Id. at 1325. As set forth above, the judgment at issue
in 5:97-cv-278 (and which was the subject of DeSue's
prior applications to the Eleventh Circuit) was the judgment
in case number 92-0266 ...