Simeon v. State of Massachusetts

Filing 6

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER. See attached order for complete details. (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRITZ SIMEON,
Petitioner,
v.
STATE OF MASSACHUSETTS,
Respondent.

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Civil Action No. 15-cv-30044-MAP

MEMORANDUM AND ORDER
ROBERTSON, U.S.M.J.
On March 19, 2015, Fritz Simeon (“Petitioner”), an immigration detainee currently held
at the Franklin County Jail and House of Correction in Greenfield, Massachusetts, filed a selfprepared “Motion to Vacate Conviction” that was docketed as a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (Docket No. 1). Petitioner challenges his July 23, 2008
guilty plea to indecent assault, assault, and attempted rape on the basis of ineffective assistance
of counsel. See Padilla v. Kentucky, 559 U.S. 356 (2010) (failure to warn of immigration
consequences of guilty plea is ineffective assistance of counsel).
Petitioner also filed a Motion for Leave to Proceed In Forma Pauperis (Docket No. 2),
which was referred to this court the same day. For the reasons set forth below, the court (1)
denies without prejudice petitioner’s Motion for Leave to Proceed In Forma Pauperis; (2) directs
the Clerk of Court to correct the Respondent in this matter to the proper party; and (3) orders the
proper Respondent to file an answer or other responsive pleading.
A party filing a habeas action in this court must either (1) pay the $5.00 filing fee for
habeas corpus actions; or (2) seek leave to proceed without prepayment of the filing fee. See Fee
Schedule for the District of Massachusetts ($5.00 fee to file writ of habeas corpus); 28 U.S.C. §
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1914(a) (fees); 28 U.S.C. § 1915 (proceeding in forma pauperis). A motion for leave to proceed
in forma pauperis, or to proceed without prepayment of fees, must be accompanied by “a
certificate from the warden or other appropriate officer of the place of confinement showing the
amount of money or securities that the petitioner has in any account in the institution.” Rule 3(a)
of the Rules Governing Section 2254 Cases.1
Here, although petitioner has completed and submitted the proper application to proceed
without prepayment of fees, he has failed to submit a certified prison account statement in
support of his motion. The attached exhibit, titled “Financial Affidavit,” is insufficient. Thus,
petitioner’s motion to proceed in forma pauperis will be denied without prejudice to his
submitting his prison accounts statement.
Further, because Petitioner is seeking habeas corpus relief, whether pursuant to 28 U.S.C.
§ 2254 or 28 U.S.C. § 2241, the State of Massachusetts is not the proper party to be named as
Respondent. Rather, Franklin County Sheriff Christopher P. Donelan is the correct party, as he
is “the individual having day-to-day control over the facility in which [Petitioner] is being
detained.” Vasquez v. Reno, 233 F.3d 688, 696 (1st Cir. 2000); see Rumsfeld v. Padilla, 542
U.S. 426, 447 (2004) (“Whenever a § 2241 habeas petitioner seeks to challenge his present
physical custody within the United States, he should name his warden as respondent and file the
petition in the district of confinement.”); Rule 2(a) of the Rules Governing Habeas Corpus Cases
Under Section 2254 (“If the petitioner is currently in custody under a state-court judgment, the
petition must name as respondent the state officer who has custody.”).2

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The Rules Governing Section 2254 and 2255 Cases may be applied at the discretion of the district court
to other habeas petitions. See Rule 1(b) of the Rules Governing Habeas Corpus Cases Under Section
2254.
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The reason that the proper respondent is deemed to be the individual with the day to day control over a
petitioner is because “[t]he writ of habeas corpus does not act upon the prisoner who seeks relief, but
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ORDER
Accordingly, it is hereby ordered that:
1. The Motion to Proceed In Forma Pauperis (Docket No. 2) is DENIED without
prejudice. If petitioner wishes to proceed with this action, within 21 days of the date
of this Order, he either must (1) pay the $5.00 filing fee; or (2) file a certified prison
account statement with the court. Failure of petitioner to comply with this directive
may result in the dismissal of this action without prejudice. The clerk shall send a
copy of this Order to the Treasurer’s Office of the prison facility where petitioner is
detained, in order to facilitate any request by petition for his certified prison account
statement;
2. The Clerk of this Court shall correct the named Respondent from State of
Massachusetts to Christopher P. Donelan;
3. The Clerk of this Court shall serve a copy of the Petition upon (i) Respondent; (ii) the
office of the United States Attorney General, and (iii) the United States Attorney;
4. The Respondent shall, within 21 days of receipt of this Order, file an answer or other
responsive pleading; and
5. The Respondent shall provide the court with at least 48 hours (i.e., 2 business days)
advance notice of any scheduled removal of petitioner, and any scheduled transfer of
the petitioner out of the jurisdiction.

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upon the person who holds him in what is alleged to be unlawful custody.” Braden v. 30 Judicial
Circuit Court of Kentucky, 410 U.S. 484, 494–95 (1973). 

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It is so ordered.
DATED: March 25, 2015

/s/ Katherine A. Robertson_____
KATHERINE A. ROBERTSON
United States Magistrate Judge

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