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Desue v. State

United States District Court, N.D. Florida, Panama City Division

September 9, 2019

MICHAEL C. DESUE, Petitioner,



         Petitioner, 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).

         Upon 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 petition.[1]Id.

         On 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.[2] 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.

         I. Background

         As with 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.[3] Compare ECF Doc. 9 at 19 with ECF Doc. 1 at 11.

         II. The Amended Writ is a Successive 28 U.S.C. § 2254 Petition

         A. Sua Sponte Dismissal Under Rule 4 is Appropriate.

         Rule 4 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).

         Rule 4 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).

         B. DeSue Has Filed a Prior Application for Habeas Corpus Relief That Was Dismissed with Prejudice

         As 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)).[4] 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. 14-12449-A.

         For a 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).

         Additionally, 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 ...

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