Foxx v. State of Missouri - County Prosecutor

Filing 6

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Petitioner's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that no order to show cause directed to Respondent shall issue at this time beca use it appears the Court lacks subject matter jurisdiction over this habeas proceeding. IT IS FINALLY ORDERED that, within thirty (30) days after the date of this Memorandum and Order, Petitioner may file material showing cause why the Court should not dismiss this proceeding due to the Court's lack of subject matter jurisdiction. The Court will dismiss this habeas proceeding without prejudice and without further notice if Petitioner fails either (1) to comply in a timely manner with this Memorandum and Order or (2) to demonstrate that this Court may exercise subject matter jurisdiction over this habeas proceeding. Signed by Magistrate Judge Patricia L. Cohen on 11/16/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FREDERICK JAMES FOXX,
Petitoner,
v.
STATE OF MISSOURI COUNTY PROSECUTOR,
Respondent.

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Case no. 4:17cv01470 PLC

MEMORANDUM AND ORDER
Petitioner Frederick James Foxx seeks leave to proceed in forma pauperis on his petition
for habeas relief filed under 28 U.S.C. Section 2241 [ECF No. 2]. 1 Petitioner’s motion to
proceed in forma pauperis includes an affidavit of Petitioner’s financial circumstances.
Additionally, this matter is before the Court on review of Petitioner’s habeas petition under 28
U.S.C. Section 2243 and Rule 4 of the Rules Governing Habeas Corpus Cases under Section
2254 (“Rules”), which the Court may apply to a Section 2241 habeas proceeding. See Rule 1(b).
Plaintiff’s In Forma Pauperis Status
A habeas petitioner may seek leave to proceed without paying a filing fee,

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otherwise

known as proceeding in forma pauperis. See 28 U.S.C. § 1915; see also Rule 3(a). A court has
discretion to grant or deny in forma pauperis status under Section 1915. Lee v. McDonald’s
1

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Petitioner also filed a motion to appoint counsel [ECF No. 3]. That motion remains pending at this time.

The fee required to file an application for writ of habeas corpus in a district court is $5.00. 28 U.S.C. §
1914(a). Under 28 U.S.C. Section 1914(b), the Clerk of Court must also “collect from the parties such additional
fees only as are prescribed by the Judicial Conference of the United States.” Effective December 1, 2016, the
Judicial Conference added a $50.00 administrative fee to the statutory fee for filing a civil action in district court.
See Par. 14 of the Judicial Conference Schedule of Fees, District Court Miscellaneous Fee Schedule (issued in
accordance with 28 U.S.C. § 1914) (effective on Dec. 1, 2016) (as reported for 28 U.S.C.A. § 1914 in the 2017
Cum. Ann. Pocket Part for the 2006 bound Vol. of Title 28 U.S.C.A. §§ 1861-1960). The Judicial Conference
expressly provided, however, that the additional $50.00 “fee does not apply to applications for a writ of habeas
corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915.” Id.

Corp., 231 F.3d 456, 458 (8th Cir. 2000). A litigant qualifies for in forma pauperis status based
on the litigant’s own financial status, independent of assets of the litigant’s spouse. Id. at 459.
Additionally, “in forma pauperis status does not require a litigant to demonstrate absolute
destitution.” Id.
A district court may authorize the commencement of any civil action without the
prepayment of fees by “a person who submits an affidavit that[, in addition to other information,]
includes a statement of all assets such [person] possesses [and] that the person is unable to pay
such fees.” 28 U.S.C. § 1915(a)(1). In addition to filing the affidavit, a
prisoner seeking to bring a civil action . . . without prepayment of fees . . . [must]
submit a certified copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period immediately preceding the
filing of the complaint . . . , obtained from the appropriate official of each prison
at which the prisoner is or was confined.
28 U.S.C. § 1915(a)(2); see also Rule 3(a)(2). Section 1915 defines a “prisoner” as “any person
incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release or [a] diversionary program.” 28 U.S.C. § 1915(h); see also 28 U.S.C.
§ 1915A(b)(2).
Importantly, when a prisoner pursues a civil action in forma pauperis, the statute requires
that “the prisoner . . . pay the full amount of [the] filing fee.” 28 U.S.C. § 1915(b)(1). A
prisoner’s payment of the full filing fee occurs through the court’s assessment and collection of
an “initial partial filing fee” followed by required “monthly payments.” 28 U.S.C. § 1915(b).
The initial partial filing fee is “20 percent of the greater of – (A) the average monthly deposits to
the prisoner’s account; or (B) the average monthly balance in the prisoner’s account for the 6month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(b)(1). After

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the initial partial filing fee is paid, the prisoner is “required to make monthly payments of 20
percent of the preceding month’s income credited to the prisoner’s account,” with the “agency
having custody of the prisoner . . . forward[ing] payments from the prisoner’s account to the
clerk of the court each time the amount in the account exceeds $10.00 until the filing fee[ is]
paid.” 28 U.S.C. § 1915(b)(2). Importantly, Section 1915 provides that “[i]n no event shall a
prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has no
assets and no means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4).
While the record includes Petitioner’s affidavit, it does not contain “a certified copy of
[a] trust fund account statement (or institutional equivalent) for [Petitioner] for the 6-month
period immediately preceding the filing” of his petition, nor does it contain any other account
statement.

Having reviewed Petitioner’s available financial information, the Court grants

Petitioner’s motion to proceed in forma pauperis, with no initial partial filing fee assessed. See
28 U.S.C. § 1915(b)(4); see also Henderson v. Norris, 129 F.3d 481, 484, 485 (8th Cir. 1997) (per
curiam) (addressing and setting forth the procedure for the district court’s in forma pauperis fee
calculations and assessments for an appeal of a civil action, and noting the district court may
calculate the initial partial filing fee, in the absence of a certified copy of the prison account, as
“$35 or such other amount that is reasonable based on whatever information the court has about
the prisoner’s finances” or “as $35 or such other reasonable amount warranted by available
information”).
Having granted Petitioner in forma pauperis status to pursue this habeas proceeding, the
Court must consider whether the petition is subject to summary dismissal because Petitioner is
not entitled to habeas relief. 28 U.S.C. § 2243; Rule 4.
Standard of Review of a Habeas Petitioner’s Entitlement to Relief

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A district court summarily dismisses a habeas petition, without issuing a show cause
order to the respondent, when review of the habeas petition demonstrates the petitioner is not
entitled to habeas relief. 28 U.S.C. § 2243 (a court either grants habeas relief or issues a show
cause order to the respondent, “unless it appears from the [habeas petition] that the [petitioner] is
not entitled to relief”); Rule 4 (a judge must examine the habeas petition and “[i]f it plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner”). In general, Section 2241 provides the federal courts with power to grant a writ of
habeas corpus in favor of a prisoner when: (1) the prisoner is in custody based on federal
authority or is committed to trial in federal court, 28 U.S.C. § 2241(c)(1), see also 28 U.S.C. §
2255; (2) the prisoner is in custody for “an act done or omitted” under a Congressional act or an
order of a federal court or judge, 28 U.S.C § 2241(c)(2); (3) the prisoner is “in custody in
violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2241(c)(3); (4)
the prisoner is a citizen of a foreign country domiciled here and in custody for “an act done or
omitted” under a right claimed under the foreign country’s order, 28 U.S.C. § 2241(c)(4); and (5)
“[i]t is necessary to bring [the prisoner] into court to testify or for trial,” 28 U.S.C. § 2241(c)(5).
Because Petitioner is not challenging the exercise of federal authority, is not a citizen of a
foreign country, and does not challenge an effort to take him to court to testify or for trial,
Section 2241(c)(3) is the habeas authority relevant to this proceeding.
A district court has jurisdiction “to entertain [a] petition[] for habeas relief only from [a]
person[] ‘in custody in violation of the Constitution or laws or treaties of the United States.’”
Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam) (emphasis in original) (quoting 28
U.S.C. § 2241(c)(3) and 28 U.S.C. § 2254(a)). The Supreme Court interprets the “statutory

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language as requiring that the petitioner be ‘in custody’ under the conviction or sentence under
attack at the time” the petitioner files the habeas petition. Id. at 490-91 (citing Carafas v.
LaVallee, 391 U.S. 234, 238 (1968)). A “district court lacks subject-matter jurisdiction” if the
“petitioner does not satisfy the custody requirement.” Weaver v. Pung, 925 F.2d 1097, 1099 (8th
Cir. 1991) (citing Maleng, supra). The Court’s subject matter jurisdiction is a proper subject for
review of a habeas petition under Section 2243 and Rule 4. See Beckwith v. Koster, No.
4:16cv1098 CDP, 2016 WL 3924187 (E.D. Mo. July 21, 2016) (considering the Court’s subject
matter jurisdiction over a habeas proceeding before issuing a show cause order to the
respondent).
Therefore, under Section 2243 and Rule 4, the Court must consider whether the petition
and materials Petitioner submitted in support of the petition demonstrate that Petitioner was “in
custody” with respect to the conviction and sentence he challenges in this habeas proceeding at
the time he filed his petition. If not, the proceeding must be dismissed because Petitioner is not
entitled to habeas relief due to this Court’s lack of subject matter jurisdiction over the
proceeding.
The Petition
In May 2017 Petitioner filed his petition seeking habeas relief under Section 2241. 3 In
his petition, Petitioner alleges he was confined in the St. Louis County Justice Center on a
sentence imposed in 2014 in State v. Foxx, No. 12SL-CR02826-01 (St. Louis County Cir. Ct.
filed June 20, 2012), 4 and states he is “no longer held – Parol[e]/Probation.” 5 Petitioner asserts
3

See Pet’r pet’n, received May 8, 2017 [ECF No. 1].

4

The docket sheet for State v. Foxx, No. 12SL-CR02826-01 (St. Louis County Cir. Ct. filed June 20,
2012) is available at https://www.courts.mo.gov/casenet/cases/search Dockets.do (last visited Nov. 15, 2017).
5

Pet’r pet’n at 2 [ECF No. 1 at 1].

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he is challenging in this proceeding: (1) how his sentence was “carried out, calculated, or
credited by prison or parole authorities,” (2) his “[p]retrial detention,” (3) a “[d]etainer,” and (4)
“[t]he validity of [his] conviction or sentence as imposed.” 6 More specifically, Petitioner states
as his sole ground for relief: “Violation of the Interstate Agreement on Detainers Act – was
extradited twice to the State of Missouri from Massachusetts, Request for final disposition
through motion filed, Ignored, after copy of article was sent w/motion to dismiss to Clerk[’]s
Office and Prosecutor[’]s office.” 7 He describes the facts supporting his ground for relief as:
“Was Held at a Massachusetts Correctional facility – awaiting second extradition Due to Parole
to the custody of Mass[.] Correctional facility – was ignored by Mass[.] Corr. Admin. To be seen
by Judge in order to present the information of the second extradition.” 8 Petitioner asserts he
presented his ground “in all appeals that were available to” him; and seeks the following relief:
“[t]o provide adequacy in order not to allow this to happen again [and t]o return all finances
(fees) that were given to courts/Lawyer fees.” 9
In a supplement to the petition [ECF No. 5], Petitioner provided twenty-six pages of
materials related to the underlying state case, State v. Foxx, No. 12SL-CR02826-01 (St. Louis
County Cir. Ct. filed June 20, 2012). 10

One of the documents reports that, on November 10,

2014, he was placed on probation for the second-degree burglary and stealing over $500

6

Pet’r pet’n. at 3 [ECF No. 1 at 2].

7

Pet’r pet’n. at 7 [ECF No. 1 at 6].

8

Pet’r pet’n. at 8 [ECF No. 1 at 7].

9

Pet’r pet’n. at 8, 9 [ECF No. 1 at 7, 8].

10

The docket sheet for State v. Foxx, No. 12SL-CR02826-01 (St. Louis County Cir. Ct. filed June 20,
2012) is available at https://www.courts.mo.gov/casenet/cases/search Dockets.do (last visited Nov. 15, 2017).

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convictions in No. 12SL-CR02826-01. 11 Another document, a letter, dated January 24, 2017,
from the State of Missouri Department of Corrections to Petitioner, advises Petitioner that,
“effective . . . 09-20-16” he was “discharged from supervision by the Missouri Board of
Probation and Parole” with regard to Case No. 12SL-CR02826-01 and other identified cases. 12
The docket sheet for Case No. 12SL-CR02826-01 reports that on October 7, 2016, the presiding
judge “so ordered” the Petitioner’s discharge from probation. 13
Discussion
“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of
that custody, and . . . the traditional function of the writ is to secure release from illegal
custody.” 14

Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (emphasis added). While the

prisoner need not be physically confined for a district court to have subject matter jurisdiction
over a habeas proceeding, “a habeas petitioner [is not] ‘in custody’ under a conviction when the
sentence imposed for that conviction has fully expired at the time his petition is filed.” Maleng,
490 U.S. at 491 (emphasis in original). In Maleng, the United States Supreme Court held that a
“habeas petitioner [does not] remain[] ‘in custody’ under a conviction after the sentence imposed
for it has fully expired merely because of the possibility that the prior conviction will be used to
enhance the sentences imposed for any subsequent crimes of which he is convicted.” Id. at 492.

11

Order of Probation, dated Nov. 10, 2014 [ECF No. 5 at 16-17]. See also the Nov. 10, 2014 entries on
the docket sheet for State v. Foxx, No. 12SL-CR02826-01 (St. Louis County Cir. Ct. filed June 20, 2012) (available
at https://www.courts.mo.gov/casenet/cases/search Dockets.do (last visited Nov. 15, 2017)).
12

Letter from Jenifer Hamm, Missouri Probation and Parole Officer II, to Fredrick Foxx, dated Jan. 24,
2017 [ECF No. 5 at 2].
13

See Oct. 7, 2016 entry on docket sheet for State v. Foxx, No. 12SL-CR02826-01 (St. Louis County Cir.
Ct. filed June 20, 2012) (available at https://www.courts.mo.gov/casenet/cases/search Dockets.do (last visited Nov.
15, 2017)).
14

Because the Court is now addressing whether the Court has subject matter jurisdiction over this habeas
proceeding, the Court need not discuss whether Petitioner would be entitled to the relief he specifically requests in
his habeas petition.

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The Supreme Court concluded the petitioner in Maleng was not “in custody” for purposes of
challenging a 1958 sentence that was fully expired by the time the petitioner filed his 1985
habeas petition, but was “in custody” under 1978 state sentences that had not yet been served and
were the subject of a detainer at the time he filed his 1985 petition. Id. at 492-93. Therefore, the
Supreme Court, expressly “limit[ing its holding] to the narrow issue of ‘custody’ for subjectmatter jurisdiction of the habeas court,” affirmed the Court of Appeals’ decision that petitioner
had “satisfied the ‘in custody’ requirement for federal habeas jurisdiction.” Id. at 493-94. A
petitioner discharged from supervision before filing a habeas petition is not “in custody” when
the petition is filed. See Jackson v. Iowa, 158 Fed. Appx. 755, 756 (8th Cir. 2005) (unpublished
per curiam) (affirming dismissal on the ground the district court lacked “jurisdiction to entertain
the habeas petition” because the petitioner was not “in custody” when he filed the petition after
he “was discharged from supervised release”); Charlton v. Morris, 53 F.3d 929, 929 (8th Cir.
1995) (per curiam) (concluding the district court was without jurisdiction to address the merits of
a habeas petition because the petitioner was not “in custody” in that he “had served his state
sentence and was discharged from supervised release” before he filed the petition).
Here, the information in the petition and the additional materials filed by Petitioner
supporting his petition demonstrate that the sentence imposed in the state criminal case
challenged in this proceeding was discharged in 2016, or months before Petitioner filed his
habeas petition in May 2017. The information in the petition and supporting materials clearly
show that the sentence Petitioner challenges in this proceeding was fully expired when Petitioner
filed his petition and, therefore, Petitioner was not “in custody” when he filed his habeas petition.
Under the circumstances, the Court lacks subject matter jurisdiction over this habeas proceeding
and it “plainly appears” that Petitioner is not entitled to habeas relief.

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Due to Petitioner’s pro se status, however, the Court will provide Petitioner an
opportunity to show cause why this proceeding should not be summarily dismissed for lack of
subject matter jurisdiction. Accordingly, after careful consideration,
IT IS HEREBY ORDERED that Petitioner’s motion to proceed in forma pauperis
[ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that no order to show cause directed to Respondent shall
issue at this time because it appears the Court lacks subject matter jurisdiction over this habeas
proceeding.
IT IS FINALLY ORDERED that, within thirty (30) days after the date of this
Memorandum and Order, Petitioner may file material showing cause why the Court should not
dismiss this proceeding due to the Court’s lack of subject matter jurisdiction.
The Court will dismiss this habeas proceeding without prejudice and without
further notice if Petitioner fails either (1) to comply in a timely manner with this
Memorandum and Order or (2) to demonstrate that this Court may exercise subject matter
jurisdiction over this habeas proceeding.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 16th day of November, 2017.

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