Musengeni v. United States District Court for the Southern District of Georgia

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Musengeni's 1 Petition for Writ of Habeas Corpus, and DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case. It is further RECOMMENDED that the Court DENY Musengeni in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 8/15/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/1/2018. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

TAMPIA MUSENGENI,
Petitioner,

CIVIL ACTION NO.: 5:18-cv-1

v.
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Tampia Musengeni (“Musengeni”), an inmate at the Broward Transitional
Center in Pompano Beach, Florida, filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241. (Doc. 1.) I have conducted a preliminary review of Musengeni’s claims, as
required by Rule 4 of the Rules Governing Section 2254 Cases. 1 For the reasons which follow,
the Court DENIES Musengeni’s Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.)
For these same reasons, I RECOMMEND that the Court DISMISS Musengeni’s Petition and
DIRECT the Clerk of Court enter the appropriate judgment of dismissal to CLOSE this . I also
RECOMMEND the Court DENY Musengeni in forma pauperis status on appeal.
BACKGROUND
In his Petition, Musengeni states that he is currently detained at Broward Transitional
Center on state charges and an immigration detainer. (Doc. 1, p. 1.) However, he provides no
other information whatsoever. (Id. at pp. 1–9.) He does not state any grounds challenging his

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Though this is a Section 2241 action, Rule 1(b) of the Rules governing petitions brought under 28
U.S.C. § 2254 provides that the Court “may apply any or all of these rules to a habeas corpus petition not
covered by Rule 1(a).”

detention or any relief that he seeks for the Court to impose. (Id. at pp. 6–9.) Though the form
Musengeni used to file his Petition requested this information, he left all pertinent questions
blank. (Id.) Musengeni does not enlighten the Court as to his claims in any of his other
pleadings.
I.

Standard of Review
Pursuant to Rule 4 of the Rules governing petitions brought under 28 U.S.C. § 2254:
The clerk must promptly forward the petition to a judge . . ., and the judge must
promptly examine [the petition]. If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the petitioner.

Under Rule 2(c), “[h]abeas corpus petitions must meet heightened pleading requirements.”
McFarland v. Scott, 512 U.S. 849, 856 (1994) (citing 28 U.S.C. § 2254 Rule 2(c)). While
pursuant to Federal Rule of Civil Procedure 8(a), complaints in a civil case must contain only “a
short and plain statement of the claim showing that the pleader is entitled to relief,” petitions for
habeas corpus must “specify all the grounds for relief available to the petitioner” and “state the
facts supporting each ground.” Rule 2 of Rules Governing Section 2254 Cases. In other words,
habeas petitions must contain “fact pleading as opposed to notice pleading.” Hittson v. GDCP
Warden, 759 F.3d 1210, 1265 (11th Cir. 2014) (internal quotations and citations omitted). “To
properly fact plead, ‘a petitioner must state specific, particularized facts which entitle him or her
to habeas corpus relief for each ground specified. These facts must consist of sufficient detail to
enable the court to determine, from the face of the petition alone, whether the petition merits
further habeas corpus review.’” Arrington v. Warden, GDCP, No. CV 117-022, 2017 WL
4079405, at *2 (S.D. Ga. Sept. 14, 2017) (quoting Adams v. Armontrout, 897 F.2d 332, 334 (8th
Cir. 1990)). Therefore, a habeas petitioner cannot merely levy conclusory allegations but must

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support his claims with specific factual detail. Id. (citing James v. Borg, 24 F.3d 20, 26 (9th Cir.
1994)).
II.

Whether the Petition Consists of Sufficient Detail to Demonstrate that Musengeni is
Entitled to Relief
As state above, Musengeni essentially left the form for filing a Section 2241 Petition

entirely blank.

Other than his place of detention, he does not provide any information

whatsoever, much less “specify all the grounds for relief available to the petitioner” and “state
the facts supporting each ground.” Rule 2 of Rules Governing Section 2254 Cases. In some
instances, the Court will direct a habeas petitioner to amend his petition to more specifically state
his claims. However, in this case, Musengeni is not incarcerated in this District. Where a
Section 2241 petitioner challenges his present confinement, “jurisdiction lies” only in “the
district of confinement,” and the proper respondent is the warden of the facility where the
petitioner is being held, not the United States or a supervisory official who exercises “legal
control” over the petitioner. See Rumsfeld v. Padilla, 542 U.S. 426, 435, 439-40, 443 (2000).
Here, Petitioner is no longer confined in this District but rather at the Broward Transitional
Center in Pompano Beach, Florida, which lies in the Southern District of Florida. 28 U.S.C. §
89(c). Consequently, this Court has no jurisdiction over the instant petition.
Thus, for all of these reasons, it plainly appears that Musengeni is not entitled to relief in
this District.

Thus, the Court DENIES his Motion to Proceed in Forma Pauperis, and I

RECOMMEND that the Court DISMISS Musengeni’s Section 2241 Petition.
III.

Leave to Appeal in Forma Pauperis
The Court should also deny Musengeni leave to appeal in forma pauperis. Though

Musengeni has, of course, not yet filed a notice of appeal, it would be appropriate to address
these issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify

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that appeal of party proceeding in forma pauperis is not taken in good faith “before or after the
notice of appeal is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies
that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).
Good faith in this context must be judged by an objective standard. Busch v. County of Volusia,
189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to
advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the factual allegations are clearly
baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327
(1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is
frivolous, and thus not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Musengeni’s Petition, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Musengeni in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, the Court DENIES Musengeni’s Motion to Proceed in Forma
Pauperis. For these same reasons, I RECOMMEND that the Court DISMISS Musengeni’s
Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, and DIRECT the Clerk
of Court enter the appropriate judgment of dismissal and to CLOSE this case.

I also

RECOMMEND the Court DENY Musengeni in forma pauperis status on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and

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Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading 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.
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. The Court DIRECTS the Clerk of
Court to serve Musengeni with a copy of this Report and Recommendation.
SO ORDERED and REPORTED and RECOMMENDED, this 1st day of August,
2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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