Mooney v. USA

          RECOMMENDATION REGARDING DISMISSAL

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on Applicant Joseph Michael Mooney's “F.R.Civ.P. Rule 60(b)(4) Motion for Relief from a Void Judgment” (“Motion”) (ECF No. 1)^[1]. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 10)^[2].

         The Court must construe Applicant's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520- 21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         The Court has reviewed the filings to date. The Court has considered the case file and the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Motion be dismissed without prejudice for lack of jurisdiction.

         I. Factual and Procedural Background

         Applicant is in the custody of the federal Bureau of Prisons in Littleton, Colorado. On February 19, 2019, he commenced this action by filing pro se the Motion (ECF No. 1). To date, Applicant has not resolved the filing fee.

         As part of the Court's review pursuant to D.C.COLO. LCivR 8.1(b), the Court determined that the filing is deficient. Thus, on February 20, 2019, the Court entered an Order Directing Applicant to Cure Deficiencies (ECF No. 3). In the Order, the Court directed Applicant to submit a pleading on a current Court-approved form and address the filing fee. The Court provided Applicant with thirty days to comply and warned that his failure to do so would result in the dismissal of this action without further notice.

         Also in the Order, the Court noted it appears that Applicant challenges the sentence imposed in his federal criminal case, because in the Motion (ECF No. 1), Applicant requests that the judgment and convictions imposed by the U.S. District Court for the Northern District of Georgia be reversed. The Court explained that this relief may be sought in the sentencing court under Fed.R.Civ.P. 60(b) or 28 U.S.C. § 2255. See also In re Lindsey, 582 F.3d 1173, 1174 (10th Cir. 2009) (“a Rule 60(b) motion may be subject to the requirements for second or successive applications”); see also Mooney v. Dunham, 670 Fed.Appx. 979, 980 (10th Cir. 2016) (affirming dismissal of Applicant's § 2241 application filed in this District “because he had an adequate and effective remedy under 28 U.S.C. § 2255” before the sentencing court). The Court further explained that Applicant may seek relief under 28 U.S.C. § 2241 in the district of confinement; however, the purposes of an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion pursuant to 28 U.S.C. § 2255 are distinct and well established. The Court directed Applicant to clarify his claims and, if he desired to assert claims cognizable under § 2241, to use the correct form and address the filing fee.

         At Applicant's request (ECF No. 4), the Court provided him with the correct forms (ECF No. 5). By Minute Order entered March 6, 2019 (ECF No. 5), the Court provided Applicant with an additional thirty days to comply with the Order Directing Applicant to Cure Deficiencies. The Court again warned that Applicant's failure to do so would result in the dismissal of this action without further notice.

         In apparent response to the Order Directing Applicant to Cure Deficiencies, Applicant filed a “Supplement to Motion for Relief from a Void Judgment” (ECF No. 6) and an “Addendum to Supplement to Motion for Relief from a Void Judgment” (ECF No. 7). To date, Applicant has not addressed the filing fee or submitted a pleading on the current Court-approved form.

         II. Failure to Prosecute and Lack of Jurisdiction

         Applicant has failed to comply with the Order Directing Applicant to Cure Deficiencies within the time allowed. This failure alone warrants the dismissal of this action without prejudice for failure to prosecute and failure to comply with the Court's Order. U.S. ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005) (“dismissal is an appropriate disposition against a party who disregards court orders and fails to proceed as required by court rules”).

         However, based on Applicant's filings, the Court lacks jurisdiction over his request for relief. Thus, in lieu of dismissal for failure to prosecute, this Magistrate Judge recommends that the Motion (ECF No. 1) be dismissed for lack of jurisdiction.

         As noted above, in the Motion, Applicant asks this Court to reverse his convictions imposed in the Northern District of Georgia and order his “immediate release, ” among other requests. (ECF No. 1 at 3, 12). Applicant argues that the Motion is “NOT a second or successive habeas corpus petition on the merits, but a legitimate attack on the jurisdiction of the issuing court to address those merits in the first place.” (Id. at 3). Applicant argues the criminal judgment against him is void “due to a complete lack of subject-matter jurisdiction over the criminal proceedings for (1) violations of due process, (2) fraud perpetrated on the court by the government, (3) abuse of discretion, and (4) usurpation of power.” (Id.). Applicant alleges he is “actually innocent” and “has been falsely imprisoned.” (Id. at 4). In the Supplement (ECF No. ...