United States District Court, D. Montana, Billings Division
Timothy J. Cavan, United States Magistrate Judge
case comes before the Court on Petitioner Lionel Scott
Ellison's application for writ of habeas corpus under 28
U.S.C. § 2254. Ellison is a state prisoner proceeding
January 2, 2018, Ellison was ordered to show cause as to why
his petition should not be dismissed as time-barred. (Doc.
5). Ellison responded to the Court's order, although it
appears he was operating under the mistaken belief that
Findings and Recommendations had already issued recommending
dismissal of Ellison's petition. See generally
(Doc. 6). No such recommendation has been made.
New 28 U.S.C. §2254 Petition/Motion to Amend
January 12, 2018, Ellison, along with eleven other pro se
prisoners, filed what has been characterized as an "en
masse petition for writ of habeas corpus- 28 USC §2254
as per Rule 23 of the Federal Rules of Civil Procedure,
" seeking to challenge the constitutionality of the
criminal charging process utilized by the State of Montana.
See (Doc. 7 at 18-32). Ellison has also filed a
Motion to Proceed in Forma Pauperis (Doc. 7-2), a Motion to
Dismiss (Doc. 7-1), and a Motion for Copies (Doc 7-4).
second or successive habeas petitions are subject to the
Antiterrorism and Effective Death Penalty Act's (AEDPA)
stringent standards for obtaining relief. 28 U.S.C.
§2244(b). But when a federal pro se habeas corpus
petitioner files a new petition in the district court while
an earlier-filed petition is still pending, the district
court must construe the new petition as a motion to amend the
pending petition rather than treating it as an unauthorized
second or successive petition. Woods v. Carey, 535
F.3d 886, 888-90 (9th Cir. 2008). Thus, the Court
will construe Ellison's most recent filing as a motion to
amend his petition in the above-referenced matter. The motion
will be granted and the Court will consider Ellison's new
claims, in addition to his original petition (Doc. 1) and his
response to this Court's order to show cause (Doc. 6).
Motion to Proceed in Forma Pauperis
has moved this Court to proceed in forma pauperis. (Doc.
7-2). Because the Court has already granted Ellison in forma
pauperis status, see (Doc. 5 at 6), his pending
motion will be denied as moot.
Motion for Copies
Court previously granted Ellison's limited request for
copies of his original petition and exhibits. (Doc. 6 at 7).
Although Ellison has been granted leave to proceed in forma
pauperis, this designation merely authorizes him to file an
action without prepayment of the filing fee. See 28
cites 28 U.S.C. §2250 in support for his request.
Section 2250 of the United States Code provides: "If on
any application for a writ of habeas corpus an order has been
made permitting the petitioner to prosecute the application
in forma pauperis, the clerk of any court of the United
States shall furnish to the petitioner without cost certified
copies of such documents or parts of the record on file in
his office as may be required by order of the judge before
whom the application is pending." 28 U.S.C. §2250.
A §2250 requests "rests within the discretion of
the judge presiding in the case" who may decide what, if
any, copies should be provided to an indigent habeas
petitioner. See Foss v. Martel, No. 09-cv3551, 2011
WL 2414512, at *2-3 (E.D. Cal. June 10, 2011); see also
Chessman v. Teets, 239 F.2d 205, 214 (9th
has now requested copies of the amended petition and the
corresponding motions. (Doc. 7-4). But given the nature of
the voluminous and duplicative filings in this case and in
the companion cases of Podry et. al,
CV-18-24-DLC-JTJ, Pet. (filed January 31, 2018) and
Bruinsma et. al, CV-18-21-DLC-TJT, Pet. (filed
January 29, 2018), the Court believes it is unnecessary and a
poor use of judicial resources to provide Ellison with the
Ellison's motion for copies will be denied at this time.