Terrell v. Unnamed Respondent

Filing 6

ORDER not adopting Magistrate Judge Catherine M. Salinas' Final Report and Recommendation 2 , overruling Petitioner's Objections 4 and dismissing this action without prejudice. Signed by Judge William S. Duffey, Jr on 10/2/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARCUS ANTHONY TERRELL,
Petitioner,
v.

1:17-cv-2535-WSD

UNNAMED RESPONDENT,
Respondent.

ORDER
This matter is before the Court on Magistrate Judge Catherine M. Salinas’
Final Report and Recommendation [2] (“R&R”), recommending that this action be
administratively closed and that the filings in this case be transferred to
Terrell v. Berry, No. 1:17-cv-2594-WSD-CMS (N.D. Ga. July 10, 2017)
(the “Berry Case”). Also before the Court are Petitioner Marcus Anthony Terrell’s
(“Terrell”) Objections [4] to the R&R.
On June 28, 2017, Terrell, a prisoner, filed his pro se Affidavit [1], asserting
that certain individuals committed “criminal perjury,” “stage[d] a crime,”
“tampered [with] a crime scene,” and thus are “part[ies] to a crime.” (See, e.g., [1]

at 1, 7).1 The same day, Terell filed, in the Berry Case, his Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254. On July 31, 2017, the Magistrate
Judge issued her R&R, recommending that this action be administratively closed
and that the filings in this case be transferred to the Berry Case “because it appears
that Terrell’s affidavit was intended to be filed in support of his habeas petition.”
(R&R at 1). On August 4, 2017, Terrell filed his Objections to the R&R, arguing
that his Affidavit “should not be forwarded to his habeas corpus [case] because it is
a request for criminal warrants” and “this is a criminal petition, not civil.” ([4] at
3). Terrell seeks “a hearing to hold the named parties accountable for there [sic]
felony crimes,” including because his attempt “to compel the superior courts to
take out warrants for the alleged criminal acts of corroborated felony perjury &
felony tampering with a crime & scene” was unsuccessful. ([4] at 2).
In view of Terrell’s Objections and his explicit request that the filings in this
action be maintained “in a separate case file of its own,” the Court declines to
adopt the R&R’s recommendation that Terrell’s Affidavit be transferred to the
Berry Case. ([4] at 4). This action is required to be dismissed, however, because
Terrell’s Affidavit seeks relief that is not available in this Court. Terrell
effectively seeks to initiate a private criminal action for perjury and related
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The identity of these individuals is not clear from Terrell’s Affidavit.
2

misconduct. “A civil action filed by a private citizen is not the proper vehicle for
the prosecution of criminal charges.” Moore v. Chambers, No. 3:11-CV-3012-AC,
2012 WL 5182806, at *5 (D. Or. Oct. 1, 2012). “If [Terrell] is attempting to assert
that [individuals] committed the crime of perjury, . . . the State would have to
initiate and prosecute those crime charges.” Id.; cf. Grady v. Baker, 404 F. App’x
450, 454 (11th Cir. 2010) (“The remedy for false testimony in a judicial
proceeding is criminal prosecution for perjury.”). This action is dismissed without
prejudice.
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Catherine M. Salinas’
Final Report and Recommendation [2] is NOT ADOPTED.
IT IS FURTHER ORDERED that Petitioner Marcus Anthony Terrell’s
Objections [4] are OVERRULED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE.

SO ORDERED this 2nd day of October, 2017.

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