United States District Court, D. New Mexico
BENJAMIN W. FAWLEY, Petitioner,
DAVID JABLONSKI, et al., Respondents.
PRO SE PRISONER ORDER ON PENDING MOTIONS AND CASE
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on several pending
motions filed by Petitioner, Benjamin W. Fawley. Because
Petitioner is a prisoner proceeding pro se, the Court is
obligated to conduct a preliminary screening of the Petition.
See Rule 4 of the Rules Governing Section 2254
Proceedings. Whenever a prisoner brings a proceeding seeking
habeas corpus relief, the Court is obligated to screen the
If 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.
request to the Court for relief must be in the form of a
motion. Fed.R.Civ.P. 7(b). Petitioner has filed numerous,
often duplicative, motions. The filing of excessive motions
may cause substantial delay in completion of the Court's
preliminary screening and resolution of the case. Petitioner
should avoid filing unnecessary motions.
before the Court are Petitioner's Motion for Production
of Documents (Doc. 24), Motion for Production of Documents
(Doc. 28), and Motion Seeking Production of Court Records
(Doc. 30). Requests for service of process, discovery,
expansion of the record, and submissions of proof are
premature and unavailable prior to the Court's completion
of its screening obligation. See Jones v. Bock, 549
U.S. 199, 213-214 (2007). The Court will deny, as premature
and without prejudice, the three Motions seeking production
of documents. If Petitioner's Petition is not dismissed
on initial screening, the Court will enter further orders
governing service of process, discovery, expansion of the
record, and scheduling.
pending are Petitioner's two, duplicative motions, Motion
to Raise the “Fundamental Miscarriage of Justice
Exception” (Doc. 25), and Motion for “Fundamental
Miscarriage of Justice Exception” to Review (Doc. 29).
Both Motions seek to assert a fundamental miscarriage of
justice exception to the procedural bar doctrine. Because no
issue of procedural bar has been raised in this case at this
time, the Court will deny the two Motions without prejudice
in the event the doctrine is raised against Petitioner in the
before the Court is Petitioner's Motion for Appointment
of Counsel (Doc. 32). There is no right to appointment of
counsel in a federal habeas corpus case. See Coleman v.
Thompson, 501 U.S. 722, 756 (1991); Swazo v. Wyo.
Dept. of Corr. State Penitentiary Warden, 23 F.3d 332,
333 (10th Cir. 1994). Instead, the decision whether to
request assistance of counsel rests in the sound discretion
of the Court. Swazo, 23 F.3d at 333; see also
Beaudry v. Corrections Corp. of America, 331 F.3d 1164,
1169 (10th Cir. 2003); MacCuish v. United States,
844 F.2d 733, 735 (10th Cir. 1988). In determining whether to
appoint counsel, the district court should consider the
merits of the litigant's claims, the nature and
complexity of the factual and legal issues, and the
litigant's ability to investigate the facts and to
present his claims. Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). The Court
has reviewed the petition and subsequent filings in light of
the foregoing factors. Petitioner appears to understand the
issues in the case and to be representing himself in an
intelligent and capable manner. See Lucero v.
Gunter, 52 F.3d 874, 878 (10th Cir. 1995). Accordingly,
the Court will deny the request for appointment of counsel.
The denial of counsel is without prejudice to a renewed
request in the event the Court orders an evidentiary hearing.
has also filed a Motion for Removal to Federal Court (Doc.
23). In his Motion, Petitioner seeks to remove to this Court
two habeas corpus proceedings he has filed in the State of
Virginia where he is incarcerated under an interstate compact
with the State of New Mexico. (Doc. 23). Federal court
jurisdiction is to be strictly construed. Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100 (1941). It is
well-established that statutes conferring jurisdiction upon
the federal courts, and particularly removal statutes, are to
be narrowly construed in light of their constitutional role
as limited tribunals. Pritchett v. Office Depot,
Inc., 420 F.3d 1090, 1094-95 (10th Cir. 2005). Removal
statutes are to be strictly construed, and all doubts are to
be resolved against removal. Fajen v. Foundation Reserve
Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). Federal
jurisdiction must be rejected if there is any doubt as to the
right of removal in the first instance. Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992).
assuming that state habeas corpus proceedings are civil
actions that may be removed under 28 U.S.C. § 2241,
civil actions brought in state court “may be removed by
the defendant or the defendants.” 28 U.S.C.
§ 1441(a) (emphasis added). See also 28 U.S.C.
§ 1446(a) (describing procedure by which “[a]
defendant or defendants” may remove a state court
action) (emphasis added); Chicago, R.I. & P.R. Co. v.
Strude, 346 U.S. 294 (1954); Colorado v. Lopez,
919 F.2d 131 (10th Cir. 1990). There is no basis that allows
a habeas corpus petitioner to invoke 28 U.S.C. § 1441.
Only state court defendants, and not plaintiffs or
petitioners, may remove an action to federal court.
Shamrock Oil, 313 U.S. at 103-04. This Court lacks
removal jurisdiction over Petitioner's Virginia habeas
corpus cases and will deny his Motion for Removal to Federal
Petitioner Fawley has filed a “Motion to Cure
Deficiency” (Doc. 6). The Motion to Cure Deficiency
does not appear to be a motion but, instead, is a response to
the Court's Order to Cure Deficiency (Doc. 3). Petitioner
Fawley has paid the $5 filing fee and cured the deficiency
cited in the Court's Order to Cure. Therefore, the Court
will dismiss the Motion to Cure Deficiency as moot.
should not send any letters to the Court other than
transmittal letters or requests for information or copies.
All mail relating to this case must be directed to the Clerk
of the Court. Petitioner is not to send any mail directly to
the assigned District Judge or the assigned Magistrate Judge.
Petitioner must comply with the Federal Rules of Civil
Procedure, the Local Rules of this Court, and any Order of
the Court. Failure to comply with the Rules or Court Orders
may result in dismissal of this case or other sanctions.
Fed.R.Civ.P. 41(b); see also Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994). Petitioner is
obligated to keep the Court advised of any changes in
Petitioner's mailing address. Failure to keep the Court
informed of Petitioner's correct address may result in
dismissal of the case or other sanctions. D.N.M. LR-Civ.
IS THEREFORE ORDERED:
(1) Petitioner Benjamin W. Fawley's Motion for Production
of Documents (Doc. 24), Motion for Production of Documents
(Doc. 28), Motion Seeking Production of Court Records (Doc.