Martin v. Roberts, et al

Filing 109

ORDER ENTERED: Petitioner's motion 107 to amend and motion 108 to appoint counsel are summarily denied for failure to comply with filing restrictions. Petitioner is prohibited from filing any pleadings or motions in this case; and this proh ibition will take effect fifteen (15) days from entry of this order unless petitioner files a valid objection within that time period. The clerk is directed to flag this case fifteen days from the date of this order to show that Mr. Martin is prohib ited from filing any additional motions or pleadings herein. The clerk is further directed to immediately return any papers submitted by Mr. Martin for filing in this flagged case with the notation that his papers are returned because he has been prohibited by the court from filing papers in this case. Signed by Senior District Judge Sam A. Crow on 10/28/2013. (Mailed to pro se party Frederick Martin by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FREDERICK MARTIN,
Petitioner,
v.

CASE NO. 87-3273-SAC

RAYMOND ROBERTS,
Respondent.
O R D E R
This case has been closed for over 2 decades, yet is once
more before this court because petitioner has again filed postjudgment motions herein.
court summarily
filing

Having considered these motions, the

denies them because they do not comply with

restrictions

previously

imposed

in

this

case.

In

addition, the court finds it necessary to prohibit Mr. Martin
from filing any additional pleadings or motions in this case due
to his failure to abide by the existing restrictions and his
continued filing of repetitive, improper and abusive motions in
this case.
In 1986, Mr. Martin was convicted of state crimes including
first degree murder and aggravated kidnaping.

Sentences were

imposed that included two consecutive life terms.
filed

the

instant

action,

which

was

his

first

In 1987 he
petition

federal habeas corpus review pursuant to 28 U.S.C. § 2254.

1

for
The

petition

was

Petitioner

considered

appealed

on

with

the

merits

appointed

and

denied

counsel,

and

1991.1

in

in

1992

the

United States Court of Appeals for the Tenth Circuit affirmed.
The United States Supreme Court denied petitioner’s application
for a writ of certiorari later that year.
course

of

habeas

petitioner’s

review,

challenges

this

in

should

federal

In the ordinary

have

court

been

to

his

the

end

1986

of

state

convictions and sentences.
However, since that time, Mr. Martin has filed other habeas
petitions

in

this

court

as

well

as

generated

more

than

30

additional docket entries in this closed case by filing postjudgment

motions

in

various

forms,

none

of

which

has

been

fruitful.

On appeal of one of his post-judgment motions in this

case,

Tenth

the

Circuit

denied

him

authorization

to

file

a

successive petition and, noting his repeated filings in that
court, directed him to show cause why sanctions should not be
imposed (Doc. 86).

In August 2005, the Tenth Circuit imposed a

sanction upon Mr. Martin of $250.00 and ordered that no further
filings

be

accepted

from

him

until

that

sanction

is

paid.

Subsequent appeals filed by him have been dismissed on account
of his failure to pay this sanction.
On

November

22,

2005,

this

court

imposed

filing

restrictions upon Mr. Martin by ordering that he file no more
1

See Martin v. Roberts, 1991 WL 3134 (D.Kan. Jan. 8, 1991), aff’d 968
F.2d 212 (10th Cir. 1991), cert. denied, 506 U.S. 992 (1992).

2

pleadings in this case unless he first obtained leave of court.
Nevertheless,

Mr.

Martin

filed

more

motions,

which

were

considered and dismissed in September 2007 (Doc. 91) for failure
to obtain preauthorization from the Tenth Circuit.

In that

order, the court reiterated that Mr. Martin was to file no more
pleadings in this case without leave of court and added specific
directions that in order to seek such leave, he must present a
motion captioned “Motion for Leave of Court to Submit Additional
Filings” in which he demonstrated good cause for the filing and
attach a copy of the court’s September 28, 2007, order to the
motion.

He was warned that his failure to strictly comply with

these directions could result in summary dismissal of future
pleadings.
Martin

These restrictions have been ineffective, as Mr.

continues

to

file

motions

in

this

long-closed

and

thoroughly-appealed case that are not in strict compliance with
this court’s directions.2
This matter is currently before the court upon Mr. Martin’s
Motion for Leave to Amend his original pleadings (Doc. 107) with
“suggestions”

to

“clarify

or

amplify

the

facts

already

presented” in support of his double jeopardy violation claim,

2

These motions have been nothing more than attempts to continue to
challenge his 1986 convictions. He has been repeatedly informed that he may
not challenge his state convictions by post-judgment motion and that instead,
in order to raise a successive challenge to his state convictions he must
first obtain authorization from the Tenth Circuit Court of Appeals to file a
successive habeas petition.

3

and Motion to Appoint Counsel (Doc. 108).

Neither of these

motions complies with the filing restrictions previously imposed
in

this

case.

In

accord

with

its

prior

orders,

the

court

summarily denies these motions for this reason.3
In

addition,

because

Mr.

Martin

has

continued

to

file

repetitive, abusive motions and utterly failed to comply with
the existing restrictions in this case, the court orders that he
is prohibited from filing any further motions or pleadings in
this case.

This prohibition will automatically go into effect

fifteen (15) days after entry of this Order, unless within that
time period Mr. Martin files an “Objection” that plainly alleges
facts

and

restriction.

legal

authority

sufficient

to

invalidate

this

This Objection must be limited to three pages, and

is the only document that may be filed by Mr. Martin herein.
In the future, any allegation that is a challenge to Mr.
Martin’s 1986 convictions or sentences may only be raised by his
submission of a new, complete application for writ of habeas
3

If this were a mere motion to amend rather than another successive
attempt to obtain habeas review, it would still be denied. Once judgment has
been entered in a case, as it was here long ago, the filing of an amended
complaint or petition is not permissible until that judgment has been set
aside or vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b).
See U.S. v.
Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006); The Tool Box, Inc. v. Ogden City
Corp., 419 F.3d 1084, 1087 (10th Cir. 2005).
Even though Rule 15(a)(2)
provides that the “court should freely give leave [to amend] when justice so
requires,” the Rule’s “presumption is reversed in cases, such as here, where
a plaintiff seeks to amend a complaint after judgment has been entered and a
case has been dismissed.”
Id. (citations omitted).
Petitioner has not had
the judgment in this case set aside. The court does not liberally construe
this motion as one under Rule 60(b) for reasons including that it has so
construed several of Mr. Martin’s prior post-judgment motions and then held
that those motions were not true Rule 60(b) motions. The instant motion to
amend is likewise not a true 60(b) motion.

4

corpus filed pursuant to 28 U.S.C. § 2254 that is presented upon
court-approved forms.
the

filing

fee

of

forma

The new petition must be accompanied by
$5.00

proceed

in

forms.

Furthermore,

or

pauperis

a

properly-supported

that

is

also

in accord with

upon

motion

to

court-approved

28 U.S.C. § 2244(b)(3),

before a new § 2254 petition may be filed by Mr. Martin in this
court, he must have sought and obtained preauthorization to file
a successive habeas application from the Tenth Circuit Court of
Appeals.

If he

court

without

is

fails to

obtain such preauthorization, this

jurisdiction

to

consider

application, and the matter must be dismissed.

his

successive

Mr. Martin will

no longer be allowed to avoid the statutory prerequisites for
filing second and successive claims, the statutory filing fee,
the

statutory

time

limitation,

and

the

local

court

rule

requiring use of forms by simply submitting repetitive, improper
motions in this long-closed case.
Because

Mr.

Martin

was

not

notified

of

the

filing

prohibition imposed in this case before he submitted his two
pending motions, the clerk was directed to open a new § 2254
case

with

a

copy

of

his

Motion

docketed as the initial pleading.
No. 13-3155-SAC (D.Kan.).

for

Appointment

of

Counsel

See Martin v. Roberts, Case

A separate, appropriate order will be

entered in that case.
IT IS THEREFORE ORDERED that petitioner’s Motion to Amend
5

(Doc. 107) and Motion to Appoint Counsel (Doc. 108) filed herein
are

summarily

denied

for

failure

to

comply

with

filing

restrictions.
IT IS FURTHER ORDERED that petitioner is prohibited from
filing any pleadings or motions in this case; and that this
prohibition will take effect fifteen (15) days from entry of
this order unless petitioner files a valid objection within that
time period.
The clerk is directed to flag this case fifteen days from
the date of this Order to show that Mr. Martin is prohibited
from filing any additional motions or pleadings herein.
clerk

is

further

directed

to

immediately

return

any

The
papers

submitted by Mr. Martin for filing in this flagged case with the
notation

that

his

papers

are

returned

because

he

has

prohibited by the court from filing papers in this case.
IT IS SO ORDERED.
Dated this 28th day of October, 2013, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

6

been