Thetford v. United States of America

Filing 7

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/28/2014. (PSM)

FILED
2014 Aug-28 PM 04:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL H. THETFORD,
Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

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CIVIL ACTION NO.
2:14-cv-01301-AKK-JEO

MEMORANDUM OPINION
On July 7, 2014, Michael H. Thetford, pro se, initiated this action by filing a
document styled as a “Motion for Leave to File a Nunc Pro Tunc Petition for
Habeas Corpus.” (Doc. 1). On July 25, 2014, the Magistrate Judge entered a
Report and Recommendation (“R&R”) that interpreted Thetford’s filing as an
application for additional time in which to file a motion to vacate, set aside, or
correct his federal sentence under 28 U.S.C. § 2255. (Doc. 4). Thetford has now
filed an objection to the R&R. (Doc. 6).
Thetford is currently in the custody of state, county, or municipal authorities
in South Dakota. Before that, he was convicted and sentenced in this court in two
cases that were before United States District Judge Karon O. Bowdre. In his
objection to the R&R, Thetford repeatedly claims an ongoing violation of his

constitutional right of access to the courts because of allegedly inadequate law
library facilities and legal assistance in the various jails and detention centers in
which he was housed after his arrest on November 19, 2011, for the charges that
led to his convictions in this court. He now acknowledges that the “ultimate
relief” he seeks is “vacation of convictions and release from confinement.” (Doc.
6 at 4). However, as the Magistrate Judge found in the R&R, this action is due to
be dismissed without prejudice regardless of whether Thetford is pursuing a claim
under 28 U.S.C. §§ 2241 or 2255.
If Thetford is petitioning for a writ of habeas corpus seeking release from
his present confinement in the custody of South Dakota state authorities, this court
lacks jurisdiction to hear such claims. See Rumsfeld v. Padilla, 542 U.S. 426, 44344 (2004). To the extent that Thetford might be raising claims attacking the
validity of his federal convictions in this court, he generally might only do so by
filing a motion to vacate, set aside or correct under 28 U.S.C. § 2255, not under §
2241. See Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1333 (11th
Cir. 2013). However, a § 2255 motion is premature because Thetford’s federal
convictions are still pending on direct appeal in the Eleventh Circuit. See United
States v. Casaran-Rivas, 311 F. App’x 269, 273 (11th Cir. 2009). Likewise, as the
magistrate judge explained, this court also lacks jurisdiction to entertain a motion
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that simply seeks an extension of time in which to file a subsequent § 2255
motion. See Swichkow v. United States, ___ F. App’x ___, ___, 2014 WL
1876920, at *2-3 (11th Cir. May 12, 2014); United States v. Hernandez, 431 F.
App’x 813, 814 (11th Cir. 2011).
Finally, to the extent that Thetford is claiming an infringement on his
constitutional right of access to the courts and is seeking a court order requiring
South Dakota officials to provide greater access to legal resources or legal
assistance to facilitate his preparation of a § 2255 motion, such claims are also due
to be dismissed without prejudice because they may not be pursued under a
petition for a writ of habeas. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
Rather, Thetford would have to file any claims pursuant to 42 U.S.C. § 1983,
which affords a civil remedy against persons who violate constitutional rights
while acting under color of state law. See Williams v. Eaves, 2012 WL 6626130,
at *1 (S.D. Ga. Dec. 19, 2012); Jupiter v. Warden, USP Lewisburg, 237 F. App’x
726, 728 (3d Cir. 2007); Jacobsen v. California, 2014 WL 67330, at *5 (E.D. Cal.
Jan. 8, 2014). To that end, Thetford has not identified, never mind named as a
defendant, any individual or entity that is purportedly responsible for denying his
constitutional right of access to the courts. In any event, Thetford would have to
litigate any such claims in South Dakota where the defendants are located. See
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Stallings v. Hoffman, 2014 WL 2040101, at *1-2 (N.D. Ga. May 12, 2014); Taylor
v. Gandy, 2011 WL 2784597, at *1 (S.D. Ala. June 23, 2011).
Having carefully reviewed and considered de novo all the materials in the
court file, including the magistrate judge’s report and recommendation and
Thetford’s objections thereto, the court is of the opinion that the magistrate
judge’s report is due to be and is hereby ADOPTED and his recommendation is
ACCEPTED. Thetford’s objections are OVERRULED. Accordingly, this action
is due to be DISMISSED WITHOUT PREJUDICE.
A separate final judgment will be entered.
DONE, this 28th day of August, 2014.

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ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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