SMITH v. STATE OF FLORIDA et al

Filing 3

ORDER re 1 Petition for Writ of Habeas Corpus filed by TED SMITH - Clerk directed to forward Petitioner 4 blank §2254 forms. Petitioner shall file an Amended Petition as explained in this order, along with two identical c opies including any exhibits or attachments. He shall also keep an identical copy of the Amended Petition for his records. (Amended Pleadings due by 1/13/2012.). Signed by MAGISTRATE JUDGE GARY R JONES on 12/16/2011. (Blank forms per order sent to Petitioner.)(jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
TED SMITH,
Petitioner,
v.

CASE NO. 1:11-cv-265-MP-GRJ

STATE OF FLORIDA, and
PAM BONDI, FLORIDA
ATTORNEY GENERAL
Respondents.
___________________________/
ORDER
This matter is before the Court on Doc. 1, a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. Petitioner is currently in civil commitment at the North
Florida Evaluation and Treatment Center (“NFETC”) in Gainesville, Florida and seeks
his release from custody at the NFETC. According to the Petition, Petitioner was
charged with attempted murder and several other crimes in state court in Gadsden
County, Florida but was found not guilty by reason of insanity. He states his treatment
team at the NFETC has recently submitted an evaluation report to the state court
recommending he be released, but that the state court has ordered his continued
commitment despite the recommendations of his treatment team to the contrary.
Petitioner states he has filed a writ of mandamus with the Florida Supreme Court and a
writ of certiorari with the First District Court of Appeals in an attempt to secure his
release through the state courts, but to no avail. In his Petition, he states he is being
held in custody in violation of the Constitution and seeks his immediate release from

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civil commitment.
Petitioner should have filed his application for a writ of habeas corpus under 28
U.S.C. § 2254, not 28 U.S.C. § 2241. 28 U.S.C. § 2254 permits “a person in custody
pursuant to the judgment of a State Court” to file an application for a writ of habeas
corpus “on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” Section 2254 applies to prisoners in state custody
pursuant to a state court judgment of criminal conviction as well as to persons in state
custody as a result of a state court order of civil commitment or civil contempt. Duncan
v. Walker, 533 U.S. 167, 176 (2001)(noting 2254 “may be available to challenge the
legality of a state court order of civil commitment or a state court order of civil
contempt”); Francois v. Henderson, 850 F.2d 231 (5th Cir. 1988)(entertaining a
challenge brought in a section 2254 petition to a state court’s commitment of a person
to a mental institution upon a verdict of not guilty by reason of insanity). In this case,
Petitioner is being held in custody at the NFETC pursuant to an order of a Florida state
court. Accordingly, the proper remedy for Petitioner is to file an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
The Court will instruct the Clerk to send Petitioner blank copies of the Court’s §
2254 form and instruct Petitioner to file an amended petition on the Court’s section
2254 form. Petitioner shall file an amended petition for writ of habeas corpus on the
forms provided to him by the Clerk. In completing the § 2254 form, Petitioner is
reminded that the petition must specify all the grounds for relief available to him; state
the facts supporting each ground; state the relief requested; be printed, typewritten, or
Case No: 1:11-cv-265-MP-GRJ

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legibly handwritten; and be signed under penalty of perjury by the petitioner or by a
person authorized to sign it for the petitioner under § 2242. § 2254 Rule 2(c)(1)-(5);
see also N.D. Fla. Loc. R. 5.1(J)(3) (petition should not make reference to
memorandum but must set forth claims and facts on form). The amended petition must
be filed in its entirety, incorporating all amendments, as matters not set forth in the
amended petition are deemed abandoned. Loc. R. 15.1. Petitioner should also make
sure to name as Respondent(s) the specific individual(s) who have him in custody. §
2254 Rule 2(a)(“[T]he petition must name as respondent the state officer who has
custody.”).
Accordingly, it is hereby ORDERED that:
(1)

The Clerk shall forward to Petitioner four blank § 2254 forms.

(2)

No later than January 13, 2012, Petitioner shall file an “Amended
Petition” as explained in this order, along with two identical copies
including any exhibits or attachments. He shall also keep an identical
copy of the Amended Petition for his records.

(3)

Failure to respond to this order as instructed will result in a
recommendation of dismissal of this action for failure to prosecute
and failure to comply with an order of this court.

DONE AND ORDERED this 16th day of December, 2011.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

Case No: 1:11-cv-265-MP-GRJ