Thomas v. Disanto et al
Filing
7
ORDER dismissing as moot 3 Motion to Forward State Court Records to Federal Court; 4 Motion for Process of Service by the U.S. Marshal and 2 Motion for Leave to Proceed in forma pauperis. Signed by Magistrate Judge R. Stan Baker on 6/23/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
THOMAS L. THOMAS, on behalf of Artheray
D. Thomas,
Petitioner,
CIVIL ACTION NO.: 5:17-cv-7
v.
DORENE DISANTO; and MIKE DEWINE,
Respondents.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Thomas Thomas (“Thomas”), proceeding pro se, has filed a cause of action
seeking habeas corpus and coram nobis relief pursuant to the All Writs Act, 28 U.S.C. § 1651,
and 28 U.S.C. § 2241. 1 (Doc. 1.) Thomas has also filed a Motion for Leave to Proceed in
Forma Pauperis, a Motion to Forward State Records, and a Motion for Process of Service.
(Docs. 2, 3, 4.) For the reasons which follow, the Court DISMISSES as moot Thomas’ Motions
for Leave to Proceed in Forma Pauperis 2, to Forward State Records, and for Process of Service.
For these same reasons, I RECOMMEND the Court DISMISS this cause of action and
DIRECT the Clerk of Court to CLOSE this case.
1
Thomas’ Petition presents little more than a different side of the same coin as his Notice of Removal in
Case Number 5:15-cv-36, DiSanto v. Thomas, (S.D. Ga. May 26, 2015). This Court granted the Motion
to Deny Remand, denied Thomas’ Notice, and remanded those proceedings to the Lake County, Ohio,
court conducting the child custody proceedings. In so doing, this Court explained to Thomas the several
ways by which this Court lacked jurisdiction over his claims. R. & R. and Order, DiSanto v. Thomas,
(S.D. Ga. Feb. 2, 2016, and Feb. 19, 2016), ECF Nos. 32, 35. Some of the bases for this Court’s lack of
jurisdiction in that case are no less applicable here, as discussed in this Report.
2
Thomas has paid the applicable filing fee, thus rendering his Motion for Leave to Proceed in Forma
Pauperis moot.
BACKGROUND
Thomas filed his Petition on January 12, 2017. (Doc. 1.) He asserts that his son is being
“unlawfully restrained” of his liberty as a result of child custody proceedings in the State of
Ohio. (Id. at p. 3.) Thomas requests that this Court reverse the unlawful and invalid orders the
Ohio state courts have issued. (Id. at p. 11.) Thomas names as Respondents Dorene Disanto, the
mother of his son and a resident of the State of Ohio, and Mike DeWine, the Attorney General
for the State of Ohio. Thomas raises several issues in his Petition, which the Court addresses in
turn.
DISCUSSION
I.
Whether Thomas Filed his Petition in the Proper Court
Thomas is challenging child custody proceedings arising in the State of Ohio. Because
he is challenging child custody proceedings and he names residents of Ohio as Respondents, his
Petition should have been filed in the Northern District of Ohio, Eastern Division, rather than in
the Waycross Division of this Court. 28 U.S.C. § 115(a)(1); Ramirez v. Hastings, No. CV214085, 2015 WL 1022363, at *2 (S.D. Ga. Mar. 9, 2015) (“[A] habeas petition . . . generally is
available only for challenging the execution of a sentence or the nature of confinement, ‘not the
validity of the sentence itself or the fact of confinement,’ and is filed in the district of” the
alleged unlawful detention.) (internal citation omitted). A district court may raise the issue of
defective venue sua sponte. Collins v. Hagel, No. 1:13-CV-2051-WSD, 2015 WL 5691076, at
*1 (N.D. Ga. Sept. 28, 2015) (citing Kapordelis v. Danzig, 387 F. App’x 905, 906–07 (11th Cir.
2010) (affirming sua sponte transfer, pursuant to 28 U.S.C. § 1406(a), of pro se prisoner’s civil
rights action from New York to Georgia); Berry v. Salter, 179 F. Supp. 2d 1345, 1350 (M.D.
Ala. 2001); cf. Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir.
2
1988); and Nalls v. Coleman Low Fed. Inst., 440 F. App’x 704, 706 (11th Cir. 2011)). When
venue is improper, a court “shall dismiss, or if it be in the interest of justice, transfer such case to
any district . . . in which it could have been brought.” 28 U.S.C. § 1406(a). “The court may
transfer the case if (1) the proposed transferee court is one in which the action ‘could have been
brought’ and (2) transfer would be ‘in the interest of justice.’” Leach v. Peacock, Civil Action
No. 2:09cv738-MHT, 2011 WL 1130596, at *4 (M.D. Ala. Mar. 25, 2011) (citing 28 U.S.C.
§ 1406(a)). Trial courts generally have broad discretion in determining whether to transfer or
dismiss a case. Id. (citing England v. ITT Thompson Indus., Inc., 856 F.2d 1518, 1520 (11th Cir.
1988)). Ordinarily, this Court would transfer this case, in the interest of justice, as venue is not
proper in this Court.
However, as explained below, in this case, the interest of justice would not be served by
transferring this case to the Northern District of Ohio, Eastern Division. Thomas’ Petition would
be subject to dismissal in that court for the reasons which follow, and thus, transferring this case
to another district would be futile. Accordingly, the Court should DISMISS Thomas’ Petition
on the basis of improper venue.
II.
Whether This Court can Review State Court Proceedings
Thomas is essentially requesting that this Court review child custody proceedings which
occurred within the State of Ohio. However, this Court is without jurisdiction to do so.
Pursuant to the Rooker-Feldman doctrine, the Court is without jurisdiction over claims
which essentially seek review of a state court judgment. “The Rooker-Feldman doctrine derives
from Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983), and provides that, as a general matter, federal district
courts lack jurisdiction to review a final state court decision.” McCorvey v. Weaver, 620 F.
3
App’x 881, 882 (11th Cir. 2015). Nor under the Rooker-Feldman doctrine may a federal court
“decide federal issues that are raised in state proceedings and ‘inextricably intertwined’ with the
state court’s judgment.” Datz v. Kilgore, 51 F.3d 252, 253 (11th Cir. 1995) (quoting Staley v.
Ledbetter, 837 F.2d 1016, 1018 (11th Cir. 1988)). “Rooker-Feldman applies because, among the
federal courts, Congress authorized only the [United States] Supreme Court to reverse or modify
a state court decision.” Helton v. Ramsay, 566 F. App’x 876, 877 (11th Cir. 2014) (citing Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). Put succinctly, this Court is
not an appeals court to which a losing or disgruntled state court party can appeal an unfavorable
decision. This Court and other federal courts frequently find that the Rooker-Feldman doctrine
prevents federal courts from hearing claims based on a state court’s custody determination or
parental rights’ termination. See, e.g., Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1334
(11th Cir. 2001) (finding that the Rooker-Feldman doctrine barred jurisdiction over the
plaintiffs’ due process claims against state officials because the success of those claims would
require finding that the state court wrongly decided to terminate the plaintiffs’ parental rights and
wrongly denied their petition for return of custody); Taylor v. Randolph, 594 F. App’x 578 (11th
Cir. 2014) (Rooker-Feldman doctrine barred mother’s claims against state court judges and
employees of sheriff’s office and child protection agency, alleging that defendants’ decisions in
child-custody proceedings and child well-being matters violated her and her child’s fundamental
rights); Plunkett v. Rountree, No. CV214-015, 2015 WL 1505970, at *12 (S.D. Ga. Mar. 31,
2015) (dismissing claims based on juvenile court’s removal of plaintiff’s children, the litigation
in juvenile court, and the treatment of her children in foster care); Daw v. Cowan, No.
3:11CV96/RV/EMT, 2013 WL 5838683, at *5 (N.D. Fla. Oct. 30, 2013) (“[T]o the extent
Plaintiff seeks review of any final judgments issued by the state court, including those that
4
terminated her parental rights, this court lacks jurisdiction over the matter.”). Further, the
Eleventh Circuit Court of Appeals has “also determined those officers and other government
personnel acting pursuant to, or in concert with, child-custody or child well-being proceedings
fall within the Rooker-Feldman doctrine because their acts are inextricably intertwined with state
court judgments.” Taylor, 594 F. App’x at 580 (citing Goodman, 259 F.3d at 1334.) 3
3
To the extent the child custody proceedings are ongoing (which does not appear to be the case), this
Court should abstain from entertaining the merits of Thomas’ Petition under the Younger abstention rule.
Younger v. Harris, 401 U.S. 37 (1971); 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003)
(“Although Younger concerned state criminal proceedings, its principles are ‘fully applicable to
noncriminal judicial proceedings when important state interests are involved.’”). The Younger abstention
doctrine reflects “a strong federal policy against federal[ ] court interference with pending state judicial
proceedings absent extraordinary circumstances.” Middlesex Cty. Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 431 (1982). “This ‘settled law,’ intended to preserve the independence of our
concurrent judicial systems, requires ‘sensitive consideration of ongoing proceedings in state courts’ and
‘that a federal court “tread lightly” when a state proceeding is already underway.’” Stephens v. Sluss, No.
CV407-089, 2007 WL 2106225, at *2–3 (S.D. Ga. Aug. 15, 2007) (quoting The News-Journal Corp. v.
Foxman, 939 F.2d 1499, 1508 (11th Cir. 1991) (quoting Blalock v. United States, 844 F.2d 1546, 1549
(11th Cir. 1988)); see Adams v. Florida, 185 F. App’x 816, 817 (11th Cir. 2006) (affirming the dismissal
of a 42 U.S.C. § 1983 complaint seeking to enjoin a civil contempt finding in child support enforcement
case under the Younger doctrine).
Where “vital state interests” are involved, a federal court should abstain from hearing a case “unless state
law clearly bars the interposition of the constitutional claim.” Middlesex Cty. Ethics Comm., 457 U.S. at
432 (quoting Moore v. Sims, 442 U.S. 415, 426 (1979)). To determine whether Younger requires
abstention in a given case, a federal court must ask three questions: “first, do the proceedings constitute
an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and
third, is there an adequate opportunity in the state proceedings to raise constitutional challenges.” 31
Foster Children, 329 F.3d at 1274 (quoting Middlesex Cty., 457 U.S. at 432). If the answer to all three
questions is “yes,” then a federal court must abstain from hearing a case in order to avoid interfering with
the ongoing state-court proceedings.
“The federal judiciary has traditionally abstained from deciding cases concerning domestic relations. As
a result, federal courts generally dismiss cases involving divorce and alimony, child custody, visitation
rights, establishment of paternity, child support, and enforcement of separation or divorce decrees still
subject to state court modification.” Ingram v. Hayes, 866 F.2d 368, 369 (11th Cir. 1988) (citations
omitted) (holding that, although diversity of citizenship existed, the district court properly abstained from
exercising jurisdiction in domestic relations case). “However, the domestic relations exception does not
justify abstention in all diversity cases involving intra-family disputes.” Moussignac v. Ga. Dep’t of
Human Res., 139 F. App’x 161, 162 (11th Cir. 2005). Federal courts should not abstain when the
following policies favoring federal abstention are absent: “the strong state interest in domestic relations
matters, the competency of state courts in settling family disputes, the possibility of incompatible federal
and state decrees in cases of continuing judicial supervision by the state, and the problem of congested
dockets in federal courts.” Id. (citing Kirby v Mellenger, 830 F.2d 176, 178 (11th Cir. 1987), and Crouch
v. Crouch, 566 F.2d 486, 487 (5th Cir. 1978)). “Consequently, federal courts should dismiss the action
5
Because Thomas is seeking review of child custody proceedings in the State of Ohio, this
Court lacks jurisdiction over the matter. Thus, the Court should DISMISS Thomas’ Petition for
lack of jurisdiction under the Rooker-Feldman doctrine.
III.
Whether the All Writs Act is Applicable
The All Writs Act permits courts to “issue all writs necessary or appropriate in aid of
their . . . jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
A petition seeking relief under the All Writs Act is a collateral proceeding and is not predicated
on a specific cause of action. Klay v. United HealthGroup, Inc., 376 F.3d 1092, 1100 (11th Cir.
2004). Rather, the movant “must simply point to some ongoing proceeding, or some past order
or judgment [of the court], the integrity of which is being threatened by someone else’s action or
behavior.” Id. However, “[w]here a statute specifically addresses the particular issue at hand, it
is that authority, and not the All Writs Act, that is controlling. Although that Act empowers
federal courts to fashion extraordinary remedies when the need arises, it does not authorize them
to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or
less appropriate.” Pa. Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43 (1985).
As noted throughout this Report, this Court lacks jurisdiction to address the merits of
Thomas’ Petition. Thomas also fails to establish that the integrity of the state court proceedings
has been threatened by another party or that he lacks other avenues of relief. Consequently,
Thomas cannot use the All Writs Act to attack child custody proceedings in this Court. The fact
only if hearing the claim would mandate inquiry into the marital or parent-child relationship.” Ingram,
866 F.2d at 370 (citing Jagiella v. Jagiella, 647 F.2d 561, 565 (5th Cir. 1981)).
This Court’s consideration of the relative merits of the contentions Thomas sets forth in his Petition
would result in an inquiry into domestic relations matters, which are generally reserved for the courts of
any given state. In addition, Thomas has not shown the absence of the State of Ohio’s interests in the
child custody proceedings or called into question the competency of that court. Instead, Thomas’
assertions merely reveal his displeasure with the Ohio court’s determination.
6
that Thomas was ultimately unable to obtain relief through the courts in the State of Ohio does
not provide grounds for the Court to invoke the All Writs Act. Id. (affirming district court’s
dismissal of petitioner’s collateral attack on his conviction, brought pursuant to the All Writs
Act, as a successive habeas petition “[b]ecause [petitioner] could not circumvent the statutory
requirements for filing a successive [28 U.S.C.] § 2254 petition by invoking the All Writs
Act[.]”). Here, Thomas asks this Court to invalidate the child custody proceedings arising in the
State of Ohio, and this Court lacks jurisdiction over such a request. Such a request should be
brought in the State of Ohio. Accordingly, the Court should DISMISS Thomas’ Petition for this
reason, as well.
IV.
Whether Thomas can Bring Claims for Habeas Corpus Relief
Thomas ostensibly seeks to bring this cause of action on his son’s behalf pursuant to 28
U.S.C. § 2241. (Doc. 1.) Two different statutes govern the single post-conviction remedy of the
writ of habeas corpus, 28 U.S.C. §§ 2241 and 2254. “The difference between the statutes lies in
the breadth of the situations to which they apply.” Thomas v. Crosby, 371 F.3d 782, 785 (11th
Cir. 2004) (quoting Medberry, 351 F.3d at 1059). A writ of habeas corpus may issue to an
individual pursuant to Section 2241 if that individual “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Section 2254
“applies to a subset of those to whom” Section 2241(c)(3) applies. Id. at 786. This Section
applies to “‘a person in custody pursuant to the judgment of a State court’ who is ‘in custody in
violation of the Constitution or law or treaties of the United States.’” Id. (quoting Section
2254(a)) (emphasis in original). While “the habeas corpus remedy is authorized by § 2241,” it is
“also subject to § 2254 and all of its attendant restrictions.” Peoples v. Chatman, 393 F.3d 1352,
1353 (11th Cir. 2004). Generally, “[a] parent has standing to bring a habeas corpus action on
7
behalf of [his] minor children.” Jenicek ex rel. J.J. v. Sorenson Ranch Sch., No. CIV. 14-4422
SRC, 2014 WL 7332039, at *2 (D.N.J. Dec. 16, 2014) (quoting Lehman v. Lycoming Cty.
Children’s Servs. Agency, 648 F.2d 135, 138 n.3 (3d Cir. 1981) (plurality opinion), aff’d, 458
U.S. 502 (1982)).
Under 28 U.S.C. § 2254, a “person in custody pursuant to a judgment of a State court”
may seek a writ of habeas corpus from a federal district court “on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). To be “in custody” within the meaning of Section 2254, the Supreme Court has
historically required that a petitioner suffer “substantial restraints” on his liberty “as a result of a
state-court criminal conviction.” Lehman, 458 U.S. at 510. The typical habeas corpus petitioner
is a prisoner who wishes to challenge his conviction. See id. at 508. In a handful of cases, the
Supreme Court has extended the remedy to petitioners who were not “actually in the physical
custody of the State.” Id. However, the petitioners in each of these cases, like prisoners,
“suffered substantial restraints not shared by the public generally.” Id. at 510. “Consistent with
its view that § 2254 requires a deprivation of liberty, the . . . Supreme Court has never held that
habeas corpus may be invoked to challenge state-court decisions regarding parental rights or
child custody.”
Janicek, 2014 WL 7332039 at *3 (citing Lehman, 458 U.S. at 510–11)
(explaining that a child who is seized pursuant to a state court order and placed in a foster home
is “not in the ‘custody’ of the State in the sense in which that term has been used by this Court in
determining the availability of the writ of habeas corpus”). “Such children, though separated
from their parents, ‘are not prisoners,’ and ‘suffer no unusual restraints not imposed on other
children.’” Id. (internal citation omitted). “Thus, the Supreme Court has instructed, extending
[habeas corpus] to challenges to state child custody decisions—challenges based on alleged
8
constitutional defects collateral to the actual custody decision—would be an unprecedented
expansion of the jurisdiction of the lower federal courts.” Id. (internal citation and punctuation
omitted) (alteration in original). According to the Supreme Court in Lehman:
The considerations in a child-custody case are quite different from those present
in any prior case in which this Court has sustained federal-court jurisdiction under
§ 2254. The federal writ of habeas corpus, representing as it does a profound
interference with state judicial systems and the finality of state decisions, should
be reserved for those instances in which the federal interest in individual liberty is
so strong that it outweighs federalism and finality concerns.
458 U.S. at 515–16.
There is nothing in Thomas’ Petition or the attachments thereto suggesting that extreme
circumstances existed in the state court custody proceedings that would create a basis for an
exception to the broad general rule that the Supreme Court stated in Lehman. 4 Accordingly, to
the extent that Thomas seeks relief in this federal action under habeas corpus principles, the
Court should DISMISS Thomas’ Petition for this reason, as well. See Holm v. Strange, No.
116CV02036MHHSGC, 2016 WL 7407099, at *2–3 (N.D. Ala. Dec. 22, 2016).
V.
Whether This Court has Jurisdiction Pursuant to 28 U.S.C. § 1738A and 25 U.S.C.
§§ 1911 Through 1922
Thomas alleges in conclusory fashion that his son should be “loved, nurtured, raised,
and/or supported according to clearly established Federal Laws”, such as 28 U.S.C. § 1738A and
25 U.S.C. §§ 1911 through 1922. (Doc. 1, pp. 8, 10.)
4
In his dissent in Lehman, Justice Blackmun suggested that, under “extreme circumstances,” a federal
court may issue a writ of habeas corpus to “secure a child’s release from state custody” if, for example,
the child is subjected to conditions constituting a “struggle for liberty by one imprisoned under the aegis
of the state.” 458 U.S. at 519 n.5 (1982) (Blackmun, J., dissenting). Thomas has not alleged that his son
has suffered any such restraints on his liberty while in state custody. In fact, Thomas fails to establish
that his son has suffered any restraints on his liberty or that his son is or has ever been in state custody for
purposes of habeas corpus relief.
9
A.
Section 1738A
“[F]ederal courts are courts of limited jurisdiction.
They possess only that power
authorized by Constitution and statute, which is not to be expanded by judicial decree[.]”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations
omitted). “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden
of establishing the contrary rests upon the party asserting jurisdiction.” Id. Section 1331 of Title
28 of the United States Code provides, “[t]he district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. “Whether a claim arises under federal law for purposes of 28 U.S.C. § 1331 is generally
determined by the well-pleaded complaint rule, which provides that federal jurisdiction exists
only when a federal question is presented on the face of the plaintiff’s properly pleaded
complaint.” Smith v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir. 2001) (quotation and alteration
omitted). “The Supreme Court has held that neither the Full Faith and Credit Clause nor
28 U.S.C. § 1738A, the Parental Kidnaping [sic] Prevention Act (“PKPA”), creates a federal
cause of action for purposes of § 1331 jurisdiction.” Stewart v. Lastaiti, 409 F. App’x 235, 236
(11th Cir. 2010) (citing Thompson v. Thompson, 484 U.S. 174 (1988)).
This Court lacks jurisdiction to entertain Thomas’ claims under Section 1738A, as his
claims do not present a federal question for this Court’s review. As a result, the Court should
DISMISS Thomas’ Petition on this basis.
B.
Sections 1911 Through 1922
Sections 1911 through 1922 of Title 25 of the United States Code concern child custody
as part of the Indian Child Welfare Act (“ICWA”). 25 U.S.C. §§ 1901, et seq. “‘Indian tribe’
means any Indian tribe, band, nation, or other organized group or community of Indians
10
recognized as eligible for the services provided to Indians by the Secretary [of the Interior]
because of their status as Indians[.]” 25 U.S.C. § 1903(8). “The term ‘Indian’. . . shall include
all persons of Indian descent who are members of any recognized Indian tribe now under Federal
jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934,
residing within the present boundaries of any Indian reservation, and shall further include all
other persons of one-half or more Indian blood.” 25 U.S.C. § 479. The Secretary of the Interior
“shall publish in the Federal Register a list of all Indian tribes which the Secretary recognizes to
be eligible for the special programs and services provided by the United States to Indians
because of their status as Indians.” 25 U.S.C. § 479a-1(a). This list is to be published every year
on or before January 30. 25 U.S.C. § 479a-1(b). The Pembina Nation Little Shell Band of North
America, of which Thomas claims he and his son are members, is not listed among the “566
tribal entities recognized and eligible for funding and services from the Bureau of Indian Affairs”
(an agency within the Department of the Interior) “by virtue of their status as Indian tribes[.]”
Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of
Indian Affairs, 80 Fed. Reg. 1942-02 (Jan. 14, 2015).
“[T]he unanimous authority of the federal courts appears to affirm that the Pembina
Nation Little Shell Band of North America is not federally recognized[ ]” as an “Indian tribe
under the ICWA.” Neal v. Arizona, No. CV-09-8203-PCT-JAT, 2010 WL 231552, at *2
(D. Ariz. Jan. 14, 2010), aff’d, 436 F. App’x 811 (9th Cir. 2011) (citing Reed v. U.S. Bank Nat’l
Assoc., 212 F. App’x 707, 708 (9th Cir. 2006) (“The district court did not abuse its discretion in
declining to recognize the Pembina court judgment because the Pembina Nation Little Shell
Band is not a federally recognized tribe[.]”); Mulder v. Lundberg, 154 F. App’x 52, 55 (10th Cir.
2005) (noting that “the Bureau of Indian Affairs does not recognize [Pembina Nation Little Shell
11
Band of North America] or its courts.”); Delorme v. United States, 354 F.3d 810, 814 n.6 (8th
Cir. 2004) (“The Little Shell Band of Chippewa Indians of North Dakota (also known as the
Little Shell Pembina Band of North America) is a federally unrecognized band[.]”); United
States v. White, No. 07-00395-01-CR-W-HFS, 2008 WL 4816987, at *3 (W.D. Mo. Oct. 31,
2008) (“The unanimous authority of the federal court has found that the Pembina Nation is not a
federally recognized tribe. As such, the Pembina Nation has no recognized authority to issue
license plates for motor vehicles traveling in the state of Missouri.”) (citations omitted); United
States v. Stowbunenko-Saitschenko, No. CR 06-0869-PHX-DGC, 2007 WL 865392, at *1
(D. Ariz. Mar. 20, 2007) (“The [Pembina Nation Little Shell Band of North America] has not
been formally recognized by the United States.”); Richmond v. Wampanoag Tribal Court Cases,
431 F. Supp. 2d 1159, 1167–69 (D. Utah 2006) (stating that Pembina Nation Little Shell Band is
not a federally recognized Indian tribe)); see also 74 Fed. Reg. 40218-02 (Aug. 11, 2009) (the
Bureau of Indian Affairs’ publication listing “Indian Entities Recognized and Eligible To
Receive Services From the United States Bureau of Indian Affairs,” which lists over 560 such
tribes, none of which are the Little Shell Band).
As the Pembina Nation Little Shell Band of North America is not recognized as eligible
for services by the Department of Interior’s Bureau of Indian Affairs, any member of this group
of people is not entitled to use of the ICWA. Thus, to the extent Thomas claims membership to
this group of people, he cannot invoke the ICWA as a basis for this Court’s jurisdiction.
Further, under the ICWA, a “child custody proceeding shall mean and include” foster
care placement, termination of parental rights, preadoptive placement, and adoptive placement.
25 U.S.C. § 1903(1). This definition does not include custody issues, as at issue in this case.
Thus, even if Thomas were eligible to use the ICWA as a member of a recognized tribe under
12
this Act, he could not invoke the ICWA as a jurisdictional basis in this case to justify this Court’s
jurisdiction. See Comanche Indian Tribe of Okla. v. Hovis, 53 F.3d 298, 302 (10th Cir. 1995)
(recognizing the definition of “child custody proceedings” under the ICWA and noting that this
term does not include “placement based upon . . . an award, in a divorce proceeding, of custody
of one of the parents.”); Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d 749, 755 (D.S.D.
2015) (“The Indian Child Welfare Act . . . was the product of rising concern in the mid-1970’s
over the consequences to Indian children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers of Indian children from their
families and tribes through adoption or foster care placement, usually in non-Indian homes.”)
(quoting Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989)).
The issue of a minor child’s custody concerns is at stake in this cause of action. By
definition, such matters are excluded from the definition of child custody proceedings under the
ICWA. Accordingly, Thomas cannot invoke the jurisdiction of this Court pursuant to the ICWA,
even if he were eligible to proceed under this Act.
Moreover, “[a]n Indian tribe shall have jurisdiction exclusive as to any State over any
child custody proceeding involving an Indian child who resides or is domiciled within the
reservation of such tribe, except where such jurisdiction is otherwise vested in the State by
existing Federal law.” 25 U.S.C. § 1911(a). “The United States, every State, every territory or
possession of the United States, and every Indian tribe shall give full faith and credit to the
public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child
custody proceedings to the same extent that such entities give full faith and credit to the public
acts, records, and judicial proceedings of any other entity.” 25 U.S.C. § 1911(d).
13
As noted above, the Pembina Nation is not a recognized Indian tribe under the ICWA. In
addition, there is no evidence before the Court that the minor child, who may not be of Indian
descent, resides in or is domiciled within the reservation of the Pembina Nation (if such were
recognized as an Indian tribe under the ICWA). There is no basis of jurisdiction under the
ICWA, and this Court is without jurisdiction to entertain the relative merits of the allegations in
Thomas’ Petition.
VI.
Whether Thomas is Entitled to a Writ of Coram Nobis
The writ of error coram nobis has been abolished in civil cases. Fed. R. Civ. P. 60(e);
United States v. Morgan, 346 U.S. 502, 506. However, this writ is available in the criminal
context for those individuals who can no longer seek post-conviction relief. United States v.
Peter, 310 F.3d 709, 712 (11th Cir. 2002). Federal courts have the authority to issue this writ
pursuant to the All Writs Act, 28 U.S.C. § 1651, but “this is an extraordinary remedy that is
available only in the most compelling circumstances to remedy errors ‘of the most fundamental
character.’” Sun v. United States, 342 F. Supp. 2d 1120, 1126 (N.D. Ga. 2004) (quoting
Morgan, 346 U.S. at 511–12). A writ of coram nobis “is only appropriate when claims could not
have been raised by direct appeal, or the grounds to attack the conviction became known after a
completed sentence when [28 U.S.C.] § 2255 relief is unavailable.” Id.
Because Thomas’ Petition is a civil proceeding, he is not entitled to the issuance of a writ
of coram nobis. In fact, Thomas does not even attempt to show how he is entitled to such relief
in a case concerning child custody issues. Consequently, the Court should DISMISS Thomas’
Petition on this basis.
14
CONCLUSION
For the reasons set forth above, the Court DISMISSES as moot Thomas’ Motions for
Leave to Proceed in Forma Pauperis, to Forward State Records, and for Process of Service.
(Docs. 2, 3, 4.) For these same reasons, I RECOMMEND the Court DISMISS this cause of
action and DIRECT the Clerk of Court to CLOSE this case.
The Court ORDERS any party seeking to object to this Report and Recommendation is
to file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge.
15
The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 23rd day of June,
2017.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?