United States District Court, D. Colorado
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. ...