Toor v. Moralas et al

Filing 16

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Gurpartap Singh Toor. This case should be dismissed. Objections to R&R due by 7/22/2013. Signed by Magistrate Judge G. R. Smith on 7/8/13. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
GURPARTAP SINGH TOOR,

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Petitioner,

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V.

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Case No. CV613-051

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WARDEN JOSE MORALAS,

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Respondent.

REPORT AND RECOMMENDATION
On April 29, 2013, Gurpartap Singh Toor fired a blast of paper at
this Court. Proceeding pro Se, he applied for 28 U.S.C. § 2254 habeas
relief, Toor v. Morales, CV613-048 doe. 1 (S.D. Ga. Apr. 29, 2013), a
petition that was dismissed because he failed to pay the $5 filing fee.
Doc. 8. Next, he filed a 28 U.S.C. § 2255 motion, Toor v. United States,
CV613-47, doe. 1 (S.D. Ga. Apr. 29, 2013), which this Court dismissed
because he cannot use § 2255 to challenge a state conviction. Id., does. 5
& 7. And finally, he filed a 28 U.S.C. § 2241 petition in this case, also
slated for dismissal upon his failure to pay the $5 filing fee. CV613-051,
does. 2 & 7.

Having since paid that fee, Toor moves for leave to file a recitation
about Georgia's abusive litigation statute, doe. 12, as well as leave "to file
civil lawsuit(s) complaint(s) pursuant to 28 U.S.C. § 1331." Doc. 13.
Those motions (does. 12 & 13) are DENIED as nonsensical and
frivolous. And his § 2241 motion must be DENIED because the form he
selected shows that it is premised on a "savings clause" alternative to §
2255. See, e.g., United States v. Neder, 451 F. App'x 842, 845 (11th Cir.
2012). As previously noted, Toor is challenging a state conviction, which
means this matter must be raised under § 2254. Hence, he may file a
new § 2254 proceeding (or move to reopen CV613-048) and ask that the
fee be waived in light of his $5 payment here. In the meantime, this case
must be DISMISSED.
Applying the Certificate of Appealability (COA) standards set forth
in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9,
2009), the Court discerns no COA-worthy issues at this stage of the
litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander
v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte
denial of COA before movant filed a notice of appeal). And, as there are
no non-frivolous issues to raise on appeal, an appeal would not be taken

in good faith. Thus, in forma pauperis status on appeal should likewise
be DENIED. 28 U.S.C. § 1915(a)(3).
lk
SO REPORTED AND RECOMMENDED this ___ day of July,

2013.
UNITED/SfATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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