HENDERSON v. ALLEN
ORDER denying 3 Motion to Appoint Counsel ; granting 2 Motion for Leave to Proceed in forma pauperis, solely for purposes of dismissing this action. The instant petition is dismissed without prejudice. Petitioner is also denied a Certificate of Appealability.Ordered by U.S. District Judge W LOUIS SANDS on 9/8/14 (wks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Warden MARTY ALLEN,
NO. 1:14-CV-131 (WLS)
Petitioner KEITH HENDERSON, a state prisoner confined at Wheeler Correctional
Facility, has filed in this Court what purports to be a habeas petition under 28 U.S.C. § 2241
(Doc. 1).1 Petitioner indicates that he wishes to attack his 2005 conviction of “robbery to armed
robbery” in the Superior Court of Early County.
Petitioner also requests to proceed in forma pauperis (“IFP”) (Doc. 2) and a motion for
appointment of counsel (Doc. 3). Solely for purposes of dismissing this action, Petitioner’s IFP
motion is GRANTED.
Under Rule 4 of the Rules Governing Section 2254 Cases, district courts are required to
promptly examine every application filed and thereafter enter a summary dismissal if it “plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief in
Petitioner filed his application using the Georgia Superior Court standard habeas form.
the district court….”2 It plainly appears from the petition that Petitioner is not entitled to relief
in this Court.
The petition is largely nonsensical. Petitioner lists the following grounds for relief: (1)
“Right to equal treatment upholding district court orders directing desegregation at Albany
divisions ….”; (2) “Right to Procedural Due Process”; (3) “Customary International Law several
practices such as slavery, torturing, kidnapping, self discriminating”; and (4) “Rape by
molestation, abuse, experience of tendencies, when sexually molested deprive out of
Petitioner is not entitled to relief under section 2241. He is not a pretrial detainee and is
not challenging the execution of his sentence.
The proper vehicle for Petitioner to challenge his Early County conviction is a petition
under 28 U.S.C. § 2254. Although the Court could construe the instant petition as one filed
under section 2254, such construction would be inappropriate. In addition to Petitioner not
stating any valid grounds for his challenge, he recently filed in the United States District Court
for the District of Nevada a section 2254 action challenging his Early County conviction. That
action was subsequently transferred to this Court and is now pending under civil action number
1:14-cv-128-WLS-TQL. Petitioner cannot maintain two section 2254 petitions challenging the
2 Rule 4 applies to section 2241 cases by virtue of Rule 1(b) of the Rules Governing
Section 2254 Cases.
3 Accompanying the petition is a “Demand for Trial Before Indictment Returned” (Doc. 4), in
which Petitioner states that he was arrested in Albany, Georgia on an unspecified date for numerous
charges, many of which clearly are not crimes (e.g., deliberate indifference, “customary international law
several practices,” and cruel and unusual punishment). If such arrest actually occurred and Petitioner
wishes to challenge it, the appropriate vehicle is a section 2241 petition, filed in the Southern District of
Georgia, in which Petitioner is presently confined.
Accordingly, the instant petition is DISMISSED WITHOUT PREJUDICE and
Petitioner’s motion for appointment of counsel is DENIED.
Reasonable jurists could not find that such dismissal is debatable or wrong; Petitioner is
thus also DENIED a Certificate of Appealability. Finally, because Petitioner is not entitled to a
COA, he is not entitled to proceed in forma pauperis on appeal.
SO ORDERED, this 8th day of September, 2014.
/s/ W. Louis Sands
W. LOUIS SANDS
UNITED STATES DISTRICT JUDGE
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