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Foxx v. State, County Prosecutor

United States District Court, E.D. Missouri, Eastern Division

November 16, 2017

FREDERICK JAMES FOXX, Petitoner,
v.
STATE OF MISSOURI -COUNTY PROSECUTOR, Respondent.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         Petitioner Frederick James Foxx seeks leave to proceed in forma pauperis on his petition for habeas relief filed under 28 U.S.C. Section 2241 [ECF No. 2].[1] Petitioner's motion to proceed in forma pauperis includes an affidavit of Petitioner's financial circumstances. Additionally, this matter is before the Court on review of Petitioner's habeas petition under 28 U.S.C. Section 2243 and Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254 (“Rules”), which the Court may apply to a Section 2241 habeas proceeding. See Rule 1(b).

         Plaintiff's In Forma Pauperis Status

         A habeas petitioner may seek leave to proceed without paying a filing fee, [2] otherwise known as proceeding in forma pauperis. See 28 U.S.C. § 1915; see also Rule 3(a). A court has discretion to grant or deny in forma pauperis status under Section 1915. Lee v. McDonald's Corp., 231 F.3d 456, 458 (8th Cir. 2000). A litigant qualifies for in forma pauperis status based on the litigant's own financial status, independent of assets of the litigant's spouse. Id. at 459. Additionally, “in forma pauperis status does not require a litigant to demonstrate absolute destitution.” Id.

         A district court may authorize the commencement of any civil action without the prepayment of fees by “a person who submits an affidavit that[, in addition to other information, ] includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees.” 28 U.S.C. § 1915(a)(1). In addition to filing the affidavit, a

prisoner seeking to bring a civil action . . . without prepayment of fees . . . [must] submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . ., obtained from the appropriate official of each prison at which the prisoner is or was confined.

28 U.S.C. § 1915(a)(2); see also Rule 3(a)(2). Section 1915 defines a “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release or [a] diversionary program.” 28 U.S.C. § 1915(h); see also 28 U.S.C. § 1915A(b)(2).

         Importantly, when a prisoner pursues a civil action in forma pauperis, the statute requires that “the prisoner . . . pay the full amount of [the] filing fee.” 28 U.S.C. § 1915(b)(1). A prisoner's payment of the full filing fee occurs through the court's assessment and collection of an “initial partial filing fee” followed by required “monthly payments.” 28 U.S.C. § 1915(b). The initial partial filing fee is “20 percent of the greater of - (A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(b)(1). After the initial partial filing fee is paid, the prisoner is “required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account, ” with the “agency having custody of the prisoner . . . forward[ing] payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10.00 until the filing fee[ is] paid.” 28 U.S.C. § 1915(b)(2). Importantly, Section 1915 provides that “[i]n no event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4).

         While the record includes Petitioner's affidavit, it does not contain “a certified copy of [a] trust fund account statement (or institutional equivalent) for [Petitioner] for the 6-month period immediately preceding the filing” of his petition, nor does it contain any other account statement. Having reviewed Petitioner's available financial information, the Court grants Petitioner's motion to proceed in forma pauperis, with no initial partial filing fee assessed. See 28 U.S.C. § 1915(b)(4); see also Henderson v. Norris, 129 F.3d 481, 484, 485 (8th Cir. 1997) (per curiam) (addressing and setting forth the procedure for the district court's in forma pauperis fee calculations and assessments for an appeal of a civil action, and noting the district court may calculate the initial partial filing fee, in the absence of a certified copy of the prison account, as “$35 or such other amount that is reasonable based on whatever information the court has about the prisoner's finances” or “as $35 or such other reasonable amount warranted by available information”).

         Having granted Petitioner in forma pauperis status to pursue this habeas proceeding, the Court must consider whether the petition is subject to summary dismissal because Petitioner is not entitled to habeas relief. 28 U.S.C. § 2243; Rule 4.

         Standard of Review of a Habeas Petitioner's Entitlement to Relief

         A district court summarily dismisses a habeas petition, without issuing a show cause order to the respondent, when review of the habeas petition demonstrates the petitioner is not entitled to habeas relief. 28 U.S.C. § 2243 (a court either grants habeas relief or issues a show cause order to the respondent, “unless it appears from the [habeas petition] that the [petitioner] is not entitled to relief”); Rule 4 (a judge must examine the habeas petition and “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner”). In general, Section 2241 provides the federal courts with power to grant a writ of habeas corpus in favor of a prisoner when: (1) the prisoner is in custody based on federal authority or is committed to trial in federal court, 28 U.S.C. § 2241(c)(1), see also 28 U.S.C. § 2255; (2) the prisoner is in custody for “an act done or omitted” under a Congressional act or an order of a federal court or judge, 28 U.S.C § 2241(c)(2); (3) the prisoner is “in custody in violation of the Constitution or laws or treaties of the United States, ” 28 U.S.C. § 2241(c)(3); (4) the prisoner is a citizen of a foreign country domiciled here and in custody for “an act done or omitted” under a right claimed under the foreign country's order, 28 U.S.C. § 2241(c)(4); and (5) “[i]t is necessary to bring [the prisoner] into court to testify or for trial, ” 28 U.S.C. § 2241(c)(5). Because Petitioner is not challenging the exercise of federal authority, is not a citizen of a foreign country, and does not challenge an effort to take him to court to testify or for trial, Section 2241(c)(3) is the habeas authority relevant to this proceeding.

         A district court has jurisdiction “to entertain [a] petition[] for habeas relief only from [a] person[] ‘in custody in violation of the Constitution or laws or treaties of the United States.'” Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam) (emphasis in original) (quoting 28 U.S.C. § 2241(c)(3) and 28 U.S.C. § 2254(a)). The Supreme Court interprets the “statutory language as requiring that the petitioner be ‘in custody' under the conviction or sentence under attack at the time” the petitioner files the habeas petition. Id. at 490-91 (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). A “district court lacks subject-matter jurisdiction” if the “petitioner does not satisfy the custody requirement.” Weaver v. Pung, 925 F.2d 1097, 1099 (8thCir. 1991) (citing Maleng, supra). The Court's subject matter jurisdiction is a proper subject for review of a habeas petition under Section 2243 and Rule 4. See Beckwith v. Koster, No. 4:16cv1098 CDP, 2016 WL 3924187 (E.D. Mo. July 21, 2016) (considering the Court's subject matter jurisdiction over a habeas proceeding before issuing a show cause order to the respondent).

         Therefore, under Section 2243 and Rule 4, the Court must consider whether the petition and materials Petitioner submitted in support of the petition demonstrate that Petitioner was “in custody” with respect to the conviction and sentence he challenges in this habeas proceeding at the time he filed his petition. If not, the proceeding must be dismissed because Petitioner is not ...


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