Green v. Estes et al

Filing 6

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/21/2014. (PSM)

FILED
2014 Feb-21 PM 02:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DENVER NEIL GREEN,
Petitioner,
v.
WARDEN DEWAYNE ESTES and the
ATTORNEY GENERAL OF THE STATE OF
ALABAMA,
Respondents.

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5:14-cv-0052-AKK-JEO

MEMORANDUM OPINION
Denver Neil Green, an Alabama state prisoner acting pro se, filed this action seeking a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). On January 14, 2014, the magistrate judge
entered a report pursuant to 28 U.S.C. § 636(b) recommending the summary denial of the petition for
failure to state a cognizable claim for habeas relief. (Doc. 4). Green has now filed a timely objection
to the report and recommendation. (Doc. 5).
As discussed in the magistrate judge’s report and recommendation, Green makes two claims
in support of his petition for a writ of habeas corpus. First, he claims the state denied him access to
the courts. More specifically, Green alleges that the clerk of the state trial court in which he was
convicted has advised him that the court will not accept any further applications for post-conviction
relief under Ala. R. Crim. P. 32 until he pays some $1,200 in fees allegedly owed for four prior Rule
32 petitions. Green claims that he filed only one prior Rule 32 petition, and that the amount the clerk
claims he owes is erroneous. Green also states that he is indigent, making it practically impossible for
him to pay any substantial amount. Second, Green says that the state court has notified him that it has
destroyed the transcript of his guilty plea colloquy and other documents from his criminal case that he

does not otherwise specifically identify, thereby hindering him from formulating claims that he
desires to present “on appeal.” (Doc. 1 at 5).
The magistrate judge concluded that neither of Green’s claims is a valid ground for federal
habeas relief under § 2254. The court agrees. Contrary to Green’s suggestion, none of the allegations
in his habeas petition relates to any right “to appeal” his criminal conviction. Rather, Green raises
claims that relate solely to his ability to file further applications for post-conviction relief pursuant to
Rule 32 of the Alabama Rules of Criminal Procedure. Rule 32 proceedings are not themselves an
appeal of a criminal conviction or a substitute for such an appeal; nor does Rule 32 “afford one an
additional, de facto, appeal.” Ex parte Williams, 651 So. 2d 569, 572 (Ala. 1992)1/. Instead, Rule 32
authorizes an Alabama prisoner to a mount a collateral attack upon a conviction that has already
become final after a direct appeal is denied or the time to perfect a direct appeal has expired. Indeed,
if prisoner could have raised a claim on direct appeal, it generally may not be raised in a Rule 32
proceeding. See ALA. R. CRIM. P. 32.2(a)(5); Stallworth v. State, ___ So. 3d ___, ___, 2013 WL
5966914, *6 (Ala. Crim. App. Nov. 8, 2013). Green’s conviction has plainly become final because he
did not pursue a direct appeal and he is now time-barred from doing so. Therefore, even if the court
assumed for the sake of argument that the Alabama courts have, in fact, violated the federal
Constitution by hindering or preventing Green from filing another Rule 32 petition, Green’s remedy
would not be in federal habeas corpus. That is because such violations relating to the availability of
post-conviction review would not impugn the validity of the criminal proceedings that actually

1/

While Ex parte Williams technically involved Temporary Rule 20 of the Alabama Rules of Criminal Procedure, see
651 So. 2d at 572, that temporary rule is the predecessor to current Rule 32. See Ex parte Rice, 565 So.2d 606, 606 n.
1 (Ala. 1990).

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resulted in his guilty-plea conviction. See Carroll v. Secretary, DOC, 574 F.3d 1354, 1365 (11th Cir.
2009).
As the magistrate judge also noted, Green has no general federal constitutional right to a copy
of the record of his criminal case for the purpose of preparing an application for post-conviction
relief. See United States v. MacCollom, 426 U.S. 317, 323-24 (1976); Hansen v. United States, 956
F.2d 245, 248 (11th Cir. 1992); Webb v. Hall, 2012 WL 1567207, *1-2 (N.D. Ala. March 22, 2012)
(Ott, M.J.), adopted, 2012 WL 1567200 (N.D. Ala. April 30, 2012) (Kallon, J.). In his objections,
Green now asserts that the failure to provide him with that record also violates Alabama statutory law.
Even so, unfortunately for Green, federal habeas relief does not lie for violations of state law unless
the violation also amounts to a violation of the Constitution. See Estelle v. McGuire, 502 U.S. 62, 67
(1991). Further, any such claim would still relate only to the availability of post-conviction relief, not
the validity of Green’s underlying conviction.
The only colorable question at this point is whether the court should on its own motion treat
Green’s pro se § 2254 habeas application as instead raising claims pursuant to 42 U.S.C. § 1983. The
magistrate judge’s report and recommendation does not directly address the question. While Green’s
claims do not entitle him to habeas relief under § 2254, he could at least conceivably obtain some
form of legal or equitable relief under § 1983, which creates a remedy for violations of federal rights
committed by persons acting under color of state law. Nonetheless, the court declines to treat Green’s
habeas pleading as a “regular” civil complaint seeking relief under § 1983, for the reasons explained
below.
First, it is generally improper for a court to recharacterize a prisoner’s habeas petition as a §
1983 complaint without the prisoner’s consent because of certain differences between the two types
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of actions. See Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011); Glaus v. Anderson, 408 F.3d
382, 388 (7th Cir. 2005). Second, conversion to a § 1983 action would necessarily alter both the
amount of, and Green’s liability for, the filing fee. If this action is treated as one for a writ of habeas
corpus, the filing fee is only $5.00. 28 U.S.C. § 1914(a). Further, as it did so in this case, the court
has the discretion to waive this nominal fee for indigency. See 28 U.S.C. § 1915(a)(1). But if the
court were to convert this action to a § 1983 prisoner case, the filing amount effectively jumps to
$400.00, see 28 U.S.C. § 1914(a); Deficit Reduction Act of 2005, Pub. L. No. 109-171, and the
court’s authority to waive prepayment of the filing fee is circumscribed by 28 U.S.C. §§ 1915(a)(2),
(b)(1). See Wilson v. Sargent, 313 F.3d 1315, 1318-19 (11th Cir. 2002). Moreover, even where a
prepayment waiver is granted in a § 1983 case, the prisoner remains liable for the full amount of the
filing fee, subject to collection through monthly withdrawals from future deposits to his facility trust
account. See 28 U.S.C. § 1915(b)(2); Wilson, 313 F.3d at 1318-19; Hubbard v. Haley, 262 F.3d
1194, 1195-96 (11th Cir. 2001). Third, the court treats the claims as § 1983 claims and later
dismissed them as “frivolous, malicious, or fail[ing] to state a claim upon which relief may be
granted,” the dismissal would count as a “strike” that could potentially restrict Green’s ability to bring
§ 1983 actions in the future. See 28 U.S.C. § 1915(g); Rivera v. Allin, 144 F.3d 719, 732 (11th Cir.
1998) (upholding § 1915(g) as against challenges that it violates First Amendment access to courts,
due process, and equal protection), abrogated on other grounds, Jones v. Bock, 549 U.S. 199 (2007).
Finally, even setting aside the prisoner’s consent, a § 2254 habeas action generally is not
amenable to conversion to a § 1983 suit where the respondents named in the habeas petition are not
proper defendants under § 1983. See Glaus, 408 F.3d at 388-89. The proper respondent in a habeas
action challenging present physical confinement is the warden or a similar official who has authority
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over the facility in which the petitioner is detained. See 28 U.S.C. §§ 2242, 2243; Rule 2(a), Rules
Governing § 2254 Habeas Cases; Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). By contrast, the
proper defendants in a § 1983 action are generally those persons or entities who actually caused, or
who would be directly responsible for remedying, a constitutional violation. See Glaus, 408 F.3d at
388-89; Moore v. Pemberton, 110 F.3d 22, 23-24 (7th Cir. 1997); cf. Prather v. Norman, 901 F.2d
915, 918 n. 4 (11th Cir. 1990) (“[T]he individuals from whom the inmate is seeking damages [under §
1983] may not be the proper defendants in a habeas action, and the allegations being raised by the
inmate may not be cognizable in federal habeas corpus.” (citations omitted)). That difference is
significant here because, having pled his case as a habeas action, the only parties that Green has
named as would-be respondents or defendants are the warden of his prison and the Alabama Attorney
General. (Doc. 1 at 1). Green’s petition, however, fails to allege that either of those individuals
personally played any role whatsoever in the alleged violation of his constitutional rights, whether in
relation to the rejection of his state court filings, the failure to provide him with documents from his
criminal case, or otherwise. Because Green’s petition does not name the correct defendants, it is not
appropriate to convert it to a civil rights action, see Glaus, 408 F.3d at 388-89; Akinruntan v. Holder,
2013 WL 5999982, *7 n. 7 (N.D. Ala. Sept. 30, 2013), R&R adopted, 2013 WL 5999765 (N.D. Ala.
Nov. 12, 2013), especially where, as here, Green is not precluded from refiling his claims in a new §
1983 action against the proper defendants. See Hadley v. Holmes, 341 F.3d 661, 665 (7th Cir. 2003);
Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004); Cohen v. Lappin, 402 Fed. App’x 674, 676 (3d
Cir. 2010); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989).
In sum, upon a de novo review of the entire file, including the magistrate judge’s Report and
Recommendation and Green’s objections thereto, the court has reached an independent conclusion
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that the Report and Recommendation is due to be ADOPTED and APPROVED to the extent that it
calls for Green’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to be DENIED.
The Report and Recommendation is REJECTED to the extent that it would call for the dismissal of
Green’s claims with prejudice, so as to preclude him from attempting to pursue those claims in a
separate action brought pursuant to 42 U.S.C. § 1983. Rather, the court concludes that the claims are
due to be DISMISSED WITHOUT PREJUDICE. A separate final judgment will be entered.
DONE this the 21st day of February, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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