Filed: May 30, 2019
Latest Update: May 30, 2019
Summary: ORDER AND REASONS SUSIE MORGAN , District Judge . Before the Court is Samuel Barker's "appeal" of state court proceedings. 1 The Court construed Barker's initial pleading as an attempt to seek federal habeas corpus relief pursuant to 28 U.S.C. 2254 and referred the matter to the United States Magistrate Judge. The Magistrate Judge ordered Barker to complete and return the standard form to be used by prisoners seeking federal habeas corpus relief. 2 Barker submitted the standard form 3
Summary: ORDER AND REASONS SUSIE MORGAN , District Judge . Before the Court is Samuel Barker's "appeal" of state court proceedings. 1 The Court construed Barker's initial pleading as an attempt to seek federal habeas corpus relief pursuant to 28 U.S.C. 2254 and referred the matter to the United States Magistrate Judge. The Magistrate Judge ordered Barker to complete and return the standard form to be used by prisoners seeking federal habeas corpus relief. 2 Barker submitted the standard form 3 ..
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ORDER AND REASONS
SUSIE MORGAN, District Judge.
Before the Court is Samuel Barker's "appeal" of state court proceedings.1 The Court construed Barker's initial pleading as an attempt to seek federal habeas corpus relief pursuant to 28 U.S.C. § 2254 and referred the matter to the United States Magistrate Judge.
The Magistrate Judge ordered Barker to complete and return the standard form to be used by prisoners seeking federal habeas corpus relief.2 Barker submitted the standard form3 and also filed a document entitled "Ex Parte Clarification of Intent of His Filing," in which Barker clarified his intent was not to file a petition for writ of habeas corpus but instead an "appeal of denied state Supervisory Writ Relief."4
The Magistrate Judge notified Barker that a prisoner may not "appeal" a state court criminal judgment to a federal district court and ordered Barker to notify the Court in writing as to whether he desires his pleadings to be construed as seeking relief under 28 U.S.C. § 2254.5 The Magistrate Judge warned Barker that, if he did not desire to have his pleadings construed as a § 2254 petition, the Court would construe his pleadings as an invalid attempt to appeal a state court criminal judgment and would recommend the matter be dismissed without prejudice.6 The Magistrate Judge also warned Barker that, if he did desire to have his pleadings construed as a § 2254 petition, any subsequent § 2254 petition would be subject to the restrictions on "second or successive" petitions.7
Barker informed the Court that he does not wish for his pleadings to be recharacterized as seeking habeas corpus relief.8 Accordingly, the Magistrate Judge recommended the proceeding be dismissed without prejudice for lack of subject matter jurisdiction.9
Barker timely objected to the Report and Recommendation, again confirming that he does not wish for his pleadings to be construed as seeking habeas corpus relief.10
Barker objects to the recommendation that the proceeding be dismissed without prejudice because the Magistrate Judge did not inform him of the availability of a "conditional" habeas writ. A conditional writ of habeas corpus orders the State to release a habeas petitioner unless the State takes some remedial action, such as to retry or resentence, the petitioner.11 A conditional writ of habeas corpus is not available in Barker's case.
Accordingly;
The Court APPROVES the Magistrate Judge's Report and Recommendations and ADOPTS it as its opinion in this matter.12
IT IS ORDERED that the proceeding instituted by Samuel Barker is hereby DISMISSED WITHOUT PREJUDICE.
