Williams v. Garcia

Filing 12

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/16/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02983-GPG
MICHAEL DESTRY WILLIAMS,
Applicant,
v.
RENE G. GARCIA,
Respondent.

ORDER OF DISMISSAL

Applicant, Michael Destry Williams, filed a document titled “Petition for Writ of
Habeas Corpus” (ECF No. 1). The petition is signed by a Stephen John Nalty, who is
not a party to this lawsuit, and Mr. Williams only provided the address for Stephen John
Nalty on the petition. Mr. Williams has paid the $5.00 filing fee.
The clerk of the Court initiated the instant action as a habeas corpus action
pursuant to 28 U.S.C. § 2241, because Ms. Williams alleged that “[n]o criminal action
has been commenced against Petitioner by the filing of an affidavit/complaint.” ECF No.
1 at 2. However, Mr. Williams asserted that he currently is incarcerated at the Federal
Correctional Institution at Englewood (FCI-Englewood), located in Littleton, Colorado,
and provided a prisoner registration number of 39714-013. According to the Federal
Bureau of Prisons (BOP) website, www.bop.gov, Mr. Williams is a prisoner in the
custody of the BOP who currently is incarcerated at the FCI-Englewood, and his
prisoner registration number is 39714-013.
As relief Mr. Williams asked for his immediate discharge from custody and

money damages.
On November 6, 2014, Magistrate Judge Boyd N. Boland entered an order to
clarify, cure, and show cause informing Mr. Williams that he may not assert claims for
money damages against prison officials in a habeas corpus action. See Licon v.
Ledezma, 638 F.3d 1303, 1311 (10th Cir. 2011) (habeas corpus is limited to challenges
to “the execution of a sentence”), and cf. Muhammad v. Close, 540 U.S. 749, 750
(2004) (habeas corpus is not meant to provide compensation for the “circumstances of
confinement”).
In the November 6 order, Magistrate Judge Boland noted that Applicant, named
Michael Destry Williams in the instant action, appeared to be the same person as
Michael Destry Williams, the named defendant in United States v. Williams, No. 12-cr00140-CMA-1 (D. Colo. Mar. 10, 2014). In No. 12-cr-00140-CMA-1, the defendant was
convicted on charges of tax evasion, under 26 U.S.C. § 7201, and aiding and abetting,
under 18 U.S.C. § 2, and sentenced to seventy-one months of imprisonment and three
years of supervised release.
The November 6 order directed Applicant to clarify in writing within thirty days
whether he is the same person as Michael Destry Williams, the named defendant in No.
12-cr-00140-CMA-1. The November 6 order pointed out that if Applicant in the instant
action and the defendant in No. 12-cr-00140-CMA-1 are the same individual, Applicant
also would be directed to show cause within thirty days why the instant habeas corpus
application should not be denied and the action dismissed, because in order to
challenge his conviction and seek his discharge from custody he must file a motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence in a separate
action.
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As part of the Court’s review pursuant to D.C.COLO.LCivR 8.1(b), Magistrate
Judge Boland determined that the submitted document titled “Petition for Writ of Habeas
Corpus” was deficient, and directed Applicant to cure certain enumerated deficiencies
within thirty days if he wished to pursue any claims in this Court in this action. The
November 6 order noted that the habeas corpus petition was not filed on the proper
form, was missing an original signature by Mr. Williams, and failed to provide addresses
for all parties to the lawsuit. The November 6 order also noted that the only proper
Respondent in a habeas corpus action is Applicant’s current warden, superintendent,
jailer or other custodian.
The November 6 order directed Mr. Williams to obtain the Court-approved form
for filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (with
the assistance of his case manager or the facility’s legal assistant), along with the
applicable instructions, at www.cod.uscourts.gov, and to use that form in curing the
designated deficiencies. Magistrate Judge Boland informed Mr. Williams that if he failed
to clarify, show cause, and cure the designated deficiencies as directed within the time
allowed, the action would be dismissed without further notice.
On November 12, 2014, Mr. Williams filed an unsigned document titled
“Mandatory Judicial Notice” (ECF No. 7) with a certificate of service signed by Stephen
Nalty and a return address for Stephen Nalty. On November 17, 2014, Mr. Williams
filed a document titled “Writ Quo Warranto” (ECF No. 9) signed by Stephen John Nalty.
On December 1, 2014, he filed an unsigned document titled “Notice and Demand for the
Honorable Court to Declare Publicly that it Lacks Competence Absent Subject Matter
and Personal Jurisdiction to Hear and Determine All Civil and Criminal Causes Brought
Before It by Various Parties at All Times Pertinent While Harboring Persons Holding
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Federal Commissions Under False Pretenses in Violation of 18 U.S.C. § 912” (ECF No.
10). He also submitted a pamphlet titled “In the Supreme Court of the United States”
(ECF No. 11).
Mr. Williams has failed within the time allowed to respond as directed to the
November 6 order to clarify, cure, and show cause. Therefore, the habeas corpus
petition and the action will be dismissed for failure to comply with the November 6 order.

Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Williams files a notice of appeal he also must pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, it is
ORDERED that the document titled “Petition for Writ of Habeas Corpus” (ECF
No. 1) is denied and the action dismissed without prejudice pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure for the failure of Applicant, Michael Destry
Williams, within the time allowed to respond as directed to the order of November 6,
2014, to clarify, cure, and show cause. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot. It is

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FURTHER ORDERED that the clerk of the Court mail a copy of this order to
Applicant at both the Federal Correctional Institution at Englewood, and in care of
Stephen John Nalty.
DATED at Denver, Colorado, this

16th

day of

December

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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