Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ellison v. Fletcher

United States District Court, D. Montana, Billings Division

February 12, 2018

LIONEL SCOTT ELLISON, Petitioner,
v.
MICHAEL FLETCHER, Respondent.

          ORDER

          Timothy J. Cavan, United States Magistrate Judge

         This 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 pro se.

         On 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.

         I. New 28 U.S.C. §2254 Petition/Motion to Amend

         On 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).

         Generally, 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).

         II. Motion to Proceed in Forma Pauperis

         Ellison 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.

         III. Motion for Copies

         The 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 U.S.C. §1915.

         Ellison 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 Cir. 1956).

         Ellison 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 requested documents.

         Accordingly, Ellison's motion for copies will be denied at this time.

         IV. Motion ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.