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United States v. Swank

United States District Court, D. Montana, Billings Division

May 19, 2014

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ROBERT TIMOTHY SWANK, SR., Defendant/Movant.


SUSAN P. WATTERS, District Judge.

On September 23, 2013, Defendant/Movant Robert Timothy Swank, Sr., moved the Court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Swank is a federal prisoner proceeding prose.

Most of Swank's claims have been denied on the merits. As to a remaining claim, the Court has attempted to obtain a statement from Swank to determine whether he wanted to have counsel appointed to represent him. Despite three opportunities, Swank failed to respond as directed. This Order dismisses the remaining claim and addresses a certificate of appealability as to both the dismissed claim and the claims denied on the merits.

I. Fed.R.Civ.P. 41(b)

A. Proceedings to Date on the Remaining Claim

On February 4, 2014, the Court entered an Order denying most of Swank's claims. Order (Doc. 82) at 5-8. It also explained why it did not understand his claims relating to his decision to plead guilty. Swank was given an opportunity to respond. Id. at 8-10.

A response (Doc. 83) was received on March 3, 2014. Although the omission was not noticed at the time, the response was not signed. Based on the response, the Court entered an Order asking Swank whether he wished to have new counsel appointed to represent him. Order (Doc. 84).

Swank did not respond to the offer of counsel. Because that is highly unusual, a second order was issued. Order (Doc. 85). The Court received a response to its second order, but the response twice misspelled Swank's name and was unsigned. Because the response was defective, the Court issued a third order. The Third Order said, "Swank personally must respond to this Order and must sign his response." Third Order (Doc. 87) at 2 (emphasis in original).[1]

The Court has now received two responses to the Third Order. The first is signed. The signature bears no resemblance to the signatures on the § 2255 motion and brief in support. Compare Mot. § 2255 (Doc. 78) at 16; Br. in Supp. (Doc. 79) at 12), with [First) Resp. to Third Order (Doc. 88) at 1. Further, the return address on the envelope is not FCI Englewood, where Swank is incarcerated, but a Michigan street address. Printed on the envelope, and scribbled out, is the name and address of a paralegal services firm in Royal Oak, Michigan. See Envelope (Doc. 88-1).

The second response, received two days after the first, is identical in text to the first. It was received from FCI Englewood, which suggests it more likely came from Swank. But it is not signed. Second Resp. to Third Order (Doc. 89) at 1; Envelope (Doc. 89-1).

The entire matter is further complicated by the fact that, in the sole claim still at issue, Swank alleges that counsel instructed him to lie at his change of plea hearing, and Swank took his advice. In sum, Swank has told the Court he committed perjury. The Court has already advised Swank that he is responsible for the consequences of his own decision to lie under oath. Order (Doc. 84) at 2. But, at the same time, if counsel told Swank that he should plead guilty because none of his constitutional trial rights would be protected, as Swank also alleges, then Swank may be entitled to relief. Id. That is why he was given the opportunity to respond and was offered counsel. But Swank has failed to respond to that offer as directed. As stated in the Third Order, therefore, the claim is subject to dismissal for failure to comply with a court order.

B. Application of Rule 41(b)

The Federal Rules of Civil Procedure apply in a habeas action to the extent they are not inconsistent with the Rules Governing § 2254 Cases in the United States District Courts or other applicable law. See Rule 12, § 2255 Rules; Gonzalez v. Crosby, 545 U.S. 524, 529 (2005); Mayle v. Felix, 545 U.S. 644, 654 (2005). Fed.R.Civ.P. 41(b) authorizes the Court to dismiss an action for failure "to comply with... a court order." The Court may dismiss a case on its own motion without awaiting a defense motion. See, e.g., Link v. Wabash R.R., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).

In considering dismissal, a court must weigh five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants or respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. See Pagtalunan v. Galaza, 291 ...

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