Miller v. Louisiana et al

Filing 10

MEMORANDUM ORDER denying 9 Motion to Re-Open Habeas Corpus; denying 9 Motion to Consolidate Cases. Dale Miller's Motion entitled "9-B Motion for Fraud or Petition to Re-Open Habeas Corpus" (doc 9 ) is DENIED. 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. 6:13-cv-0609
SECTION P
JUDGE DOHERTY

STATE OF LOUISIANA, ET AL.

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. 9]. By this pleading,
Miller requests that this Court re-open a previously filed federal habeas corpus action
which was closed by this Court on December 15, 2011, after petitioner's pleadings were
stricken for his failure to pay this Court’s filing fee or submit a proper application to
proceed in forma pauperis and his Motions, alternatively, denied.1 Miller further requests
that this Court consolidate this action with his closed habeas corpus action and another
closed civil action (Miller v. Michot, et al., Civil Action No. 6:13-cv-0468), in which this
Court has likewise stricken the pleadings, and consider all of these actions as a single

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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 Miller v. Cain, No. 08-30875 (5th Cir. 2009) (unpublished).

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, including by Report and
Recommendation issued in this action [rec. doc. 8], no matter how his pleadings are
styled, Miller's requested relief is not available. See also Miller v. Michot, et al., Civil
Action No. 6:13-cv-0468, rec. doc. 11 (W.D. La. 2013) and Miller v. Judge Hebert, 6:13mc-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

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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. 9] is DENIED.

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

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