Wetzel v. Montgomery

Filing 8

ORDER that the petition pursuant to 28 U.S.C. 2241 and #6 Motion for Preliminary Injunction and Temporary Restraining Order are dismissed without prejudice for failure to exhaust administrative remedies. FURTHER ORDERED that the #5 Motion to Appoint Counsel is dismissed as moot. Signed by Judge Lance M Africk on 11/18/2021. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDREW WETZEL

CIVIL ACTION

VERSUS

No. 21-1940

WARREN MONTGOMERY

SECTION I
ORDER

Before the Court is Wetzel’s petition 1 pursuant to 28 U.S.C. § 2241, motion2
for preliminary injunction and temporary restraining order, and motion 3 to appoint
counsel.
Petitioner Wetzel has a long history of frivolous litigation. As a result of this
history, Wetzel is generally barred from filing non-habeas-related civil actions as a
pauper. 4 The Fifth Circuit has also sanctioned him various times and forbidden him
from filing any new habeas actions “challenging any conviction or sentence until all
sanctions have been paid in full, unless he first obtains leave of the court in which he
seeks to file such a challenge.” Wetzel v. Goodwin, No. 14-30370 (5th Cir. Apr. 8,
R. Doc. No. 3.
R. Doc. No. 6.
3 R. Doc. No. 5.
4 That fact has been recognized in all three federal judicial districts in this state.
See, e.g., Wetzel v. Tanner, No. 16-5765, 2016 WL 3127302 (E.D. La. June 3, 2016)
(Wilkinson, M.J.); Wetzel v. Goodwin, No. 14-3331, 2015 WL 965688 (W.D. La. Mar.
3, 2015); Wetzel v. Prince, No. 11-0010, 2011 WL 1465395 (M.D. La. Mar. 21, 2011),
adopted, 2011 WL 1465420 (M.D. La. Apr. 18, 2011). His history of abusive
litigation was recently noted again earlier this year. Wetzel v. Montgomery, No. 211687, 2021 WL 4523842 (E.D. La. Sept. 20, 2021) (North, M.J.), adopted, 2021 WL
4521892 (Oct. 4, 2021) (Africk, J.).
1
2

2015). That being said, he is not barred from filing the present habeas action, in which
he challenges an ongoing prosecution rather than a conviction or sentence. 5 For the
reasons that follow, the Court denies the petition and accompanying motions.
Petitions seeking relief pursuant to 28 U.S.C. § 2241 are subject to an
exhaustion requirement. See, e.g., Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir.
1987) (“Despite the absence of an exhaustion requirement in the statutory language
of section 2241(c)(3), a body of case law has developed holding that although section
2241 establishes jurisdiction in the federal courts to consider pre-trial habeas corpus
petitions, federal courts should abstain from the exercise of that jurisdiction if the
issues raised in the petition may be resolved either by trial on the merits in the state
court or by other state procedures available to the petitioner.”). Relatedly, pretrial
detainees are strictly limited in the types of claims they may assert and the types of
relief they may seek under 28 U.S.C. § 2241. For example, the Fifth Circuit has held:
The [United States Supreme] Court in Braden [v. 30th Judicial District
Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973),]
... reiterated the long established principle “that federal habeas corpus
does not lie, absent ‘special circumstances’, to adjudicate the merits of
an affirmative defense to a state criminal charge prior to a judgment of
conviction by a state court.” Braden, 410 U.S. at 489, 93 S.Ct. at 1127.
The Court also stated that “nothing we have said would permit the
derailing of a pending state proceeding by an attempt to litigate
constitutional defenses prematurely in federal court.” Id. at 493, 93 S.Ct.
at 1129.

See Jackson v. Johnson, 475 F. 3d 261, 263 n.2 (5th Cir. 2007) (“The PLRA’s threestrikes provision does not bar prisoners from proceeding in forma pauperis in a
habeas action, even if the prisoner has accumulated three strikes.”).

5

Dickerson, 816 F.2d at 226; accord Vassar-El v. Orleans Parish Prison, No. 18-838,
2018 WL 4462544 (E.D. La. Sept. 18, 2018) (Barbier, J.).
In the present action, there is no indication petitioner has exhausted his claims
in the state courts. See R. Doc. No. 3, at 6, answer to question 12. Because petitioner
has not met the exhaustion requirement, the Court will deny the petition and
accompanying motions. Accordingly,
IT IS ORDERED that the petition pursuant to 28 U.S.C. § 2241 and motion
for preliminary injunction and temporary restraining order are DISMISSED
WITHOUT PREJUDICE for failure to exhaust administrative remedies.
IT IS FURTHER ORDERED that the motion to appoint counsel is
DISMISSED AS MOOT.
New Orleans, Louisiana, November 18, 2021.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE