Michael West v. Municipal Court for the City of O'Fallon, Missouri, and Jeremiah "Jay" Nixon, Attorney General for the State of Missouri.

Filing 5

ORDER:... In accordance with the foregoing, IT IS HEREBY ORDERED that this Court's order and memorandum dated September 14, 2006 [Doc. #2], and this Court's order of dismissal dated September 14, 2006 [Doc. #3], are hereby VACATED. IT IS F URTHER ORDERED that the City of O'Fallon, Missouri;Donna Morrow; Jerry Schulte; Robert M. Wohler; Jane Doe (municipal clerk); and John Doe (prosecuting attorney) are hereby STRICKEN from this action as improper respondents. IT IS FURTHER ORDERE D that the Clerk shall docket thisaction as follows: Michael West v. Municipal Court for the City of O'Fallon, Missouri, and Jeremiah "Jay" Nixon, Attorney General for the State of Missouri. [Case reopened]. Signed by Judge Carol E. Jackson on 10/3/2006. (BDC)

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Michael West v. Municipal Court for the City of O'Fallon, Missour...neral for the State of Missouri. Doc. 5 Case 4:06-cv-01126-RWS Document 5 Filed 10/03/2006 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION MICHAEL WEST, Petitioner, v. CITY OF O'FALLON, et al., Respondents. ) ) ) ) ) ) ) ) ) ORDER This matter is before the Court upon petitioner's "Rule 59 Motion for Reconsideration" [Doc. #4]. On September 14, 2006, No. 4:06CV1126(TCM) the undersigned issued an order dismissing petitioner's application for a writ of habeas corpus on the ground that petitioner - having been fined, not incarcerated, for violating various municipal offenses - was not in custody for purposes of a habeas corpus action. [Docs. #2 and #3]. Liberally construing the instant motion for reconsideration, petitioner asserts that despite having pleaded guilty to the municipal violations and being fined by the municipal court, he is subject to post-conviction restraints (i.e., a cash bond) and, therefore, he is in custody pursuant to Hensley v. Municipal Court, San Jose Milpitas Judicial District, Santa Clara County, 411 U.S. 345 (1973). Based on the foregoing allegation, the issue of whether plaintiff is in custody for purposes of habeas corpus cannot be determined merely from the face of the petition. Therefore, this Court's prior order denying the writ and Dockets.Justia.com Case 4:06-cv-01126-RWS Document 5 Filed 10/03/2006 Page 2 of 3 dismissing the instant action will be vacated. However, a writ of habeas corpus is directed only to the state officer who has custody of the petitioner - not to every person whom petitioner believes violated his constitutional rights. See Rule 2(a) of the Rules Governing 2254 Cases in the Following Hensley, the proper United States District Courts. respondents in this type of case would be the municipal court and the Attorney General for the State of Missouri. See also Rule 2 of the Rules Governing 2254 Cases, Advisory Committee Notes. In accordance with the foregoing, IT IS HEREBY ORDERED that this Court's order and memorandum dated September 14, 2006 [Doc. #2], and this Court's order of dismissal dated September 14, 2006 [Doc. #3], are hereby VACATED. IT IS FURTHER ORDERED that the City of O'Fallon, Missouri; Donna Morrow; Jerry Schulte; Robert M. Wohler; Jane Doe (municipal clerk); and John Doe (prosecuting attorney) are hereby STRICKEN from this action as improper respondents. 2 Case 4:06-cv-01126-RWS Document 5 Filed 10/03/2006 Page 3 of 3 IT IS FURTHER ORDERED that the Clerk shall docket this action as follows: Michael West v. Municipal Court for the City of O'Fallon, Missouri, and Jeremiah "Jay" Nixon, Attorney General for the State of Missouri. Dated this 3rd day of October, 2006. UNITED STATES DISTRICT JUDGE 3

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