Miller v. Louisiana State Penitentiary

Filing 16

MEMORANDUM ORDER denying 15 Motion to Reopen/Reinstate Case; denying 15 Motion to Consolidate Cases. Dale Miller's Motion entitled "9-B Motion for Fraud or Petition to Re-Open Habeas Corpus" (doc 15 ) is DENIED. The Clerk shall not accept any further filings in this closed action. Signed by Magistrate Judge C Michael Hill on 5/22/2013. (crt,Gregory, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
DALE MILLER
LA. DOC #479248
VS.

CIVIL ACTION NO. 6:11-cv-1764
SECTION P
JUDGE HAIK

THE STATE OF LOUISIANA

MAGISTRATE JUDGE HILL

MEMORANDUM ORDER
Before the Court is a pleading filed by pro se movant Dale Miller entitled "9-B
Motion for Fraud or Petition to Re-Open Habeas Corpus" [rec. doc. 15]. By this pleading,
Miller requests that this Court re-open this federal habeas corpus action which was closed
by this Court on December 15, 2011.1 Miller further requests that this Court consolidate this
action with a closed civil action (Miller v. Michot, et al., Civil Action No. 6:13-cv-0468) and
another civil action which the undersigned has recommended be dismissed with prejudice
for failing to state a claim for which relief may be granted in accordance with the provisions
of 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c)(1) (Miller v. State of Louisiana, et al., Civil

1

This action was closed after this Court struck petitioner's pleadings for his failure to pay this
Court’s filing fee or submit a proper application to proceed in forma pauperis, and his Motions were
alternatively denied. Had the pleadings not been stricken and the action closed, the action would have
been dismissed as a second and successive habeas corpus petition filed without proper authorization of
the United States Fifth Circuit Court of Appeal as mandated by 28 U.S.C. § 2244(b)(3)(A). See Hooker v.
Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Crone
v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). Petitioner's federal habeas corpus action was denied and
dismissed with prejudice, on the merits, by August 27, 2008 Judgment. Dale Miller v. Burl Cain,
Warden, Civil Action No. 6:07-cv-0798 (W.D. La. 2008). A Certificate of Appealability was denied by
the Fifth Circuit Court of Appeals on July 29, 2009. Miller v. Cain, No. 08-30875 (5th Cir. 2009)
(unpublished).

Action No. 6:13-cv-0609 (W.D. La. 2013)), and consider all of these actions as a single
federal petition for writ of habeas corpus, seeking criminal prosecution of all of the named
defendants and respondents in the separate actions.
As Miller has already be advised on three occasions, no matter how his pleadings are
styled, Miller's requested relief is not available. See (Miller v. State of Louisiana, et al., Civil
Action No. 6:13-cv-0609, rec. doc. 8 (W.D. La. 2013); Miller v. Michot, et al., Civil Action
No. 6:13-cv-0468, rec. doc. 11 (W.D. La. 2013) and Miller v. Judge Hebert, 6:13-mc-0008,
rec. doc. 2 (W.D. La. 2013). This Court cannot initiate a criminal prosecution. Miller has no
private cause of action to prosecute any person under the law, nor may Miller initiate a
criminal prosecution through a private law suit. Simply stated, private citizens, like Miller,
do not have a right to compel a criminal prosecution or to have the defendants criminally
prosecuted.
Further, this Court will not re-open actions which have been closed.
Finally, this Court will not re-characterize any of petitioner's actions as a federal
petition for writ of habeas corpus because this Court does not have jurisdiction to
entertain such an action. Petitioner's has already filed a federal habeas corpus action
attacking his state court conviction and sentence for second degree murder. That action
was denied and dismissed with prejudice, on the merits, by August 27, 2008 Judgment.
Dale Miller v. Burl Cain, Warden, Civil Action No. 6:07-cv-0798 (W.D. La. 2008). A
Certificate of Appealability was denied by the Fifth Circuit Court of Appeals on July 29,
2009. Miller v. Cain, No. 08-30875 (5th Cir. 2009) (unpublished). Petitioner has not
2

received authorization of the United States Fifth Circuit Court of Appeal mandated by 28
U.S.C. § 2244(b)(3)(A) to file a second or successive federal habeas corpus action.
Accordingly, in the absence of such authorization, this Court lacks jurisdiction to
entertain a habeas corpus action. See Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir.
1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Crone v. Cockrell, 324
F.3d 833, 836 (5th Cir. 2003).
For these reasons;
Dale Miller's Motion entitled "9-B Motion for Fraud or Petition to Re-Open
Habeas Corpus" [rec. doc. 15] is DENIED. The Clerk shall not accept any further
filings from Miller in this closed action.

In Chambers at Lafayette, Louisiana, on May 22, 2013.

3