McGee v. Hacker

Filing 4

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that the Clerk of Court shall send to petitioner a copy of the Courts 28 U.S.C. 2254 form. IT IS FURTHER ORDERED that petitioner must file an amended 28 U.S.C. 2254 petition within thirty (30) days of the date of this order. IT IS FURTHER ORDERED that if petitioner does not submit an amended petition within thirty (30) days, this action will be dismissed without prejudice and without further notice from the Court. IT IS FURTHER ORDERED that the Clerk of Court shall send to petitioner a copy of the Courts motion to proceed in forma pauperis form. IT IS FURTHER ORDERED that petitioner shall either submit a motion for leave to proceed in forma pauperis or pay the filing fee within thirty (30) days of the date of this order. IT IS FURTHER ORDERED that if petitioner fails to file a motion to proceed in forma pauperis or pay the filing fee within thirty (30) days, this action will be dismissed without prejudice and without further notice. (Response to Court due by 12/17/2020). Signed by Magistrate Judge Nannette A. Baker on 11/17/20. (Attachments: #1 Attachment 2254 Form, #2 Attachment Motion for IFP Form)(EAB)

Case: 4:20-cv-01575-NAB Doc. #: 4 Filed: 11/17/20 Page: 1 of 3 PageID #: 28

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN D. MCGEE,

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Petitioner,
v.
DENISE HACKER,

Respondent.

No. 4:20-cv-01575-NAB

MEMORANDUM AND ORDER
This matter comes before the Court on review of a document filed by petitioner Kevin D.
McGee that has been construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254. (Docket No. 1). For the reasons discussed below, petitioner will be ordered to file an
amended petition on a Court form. He will also be directed to either file a motion for leave to
proceed in forma pauperis or pay the filing fee.
Discussion
Petitioner is a self-represented litigant who is currently in custody at the Southeast Missouri
Mental Health Center in Farmington, Missouri. On November 4, 2020, he filed a document with
the Court that is styled an “Objection to the [Ruling] of Consolidation,” and purports to object to
the consolidation of various state circuit court cases he has filed. 1 In the document, petitioner
claims a violation of his fundamental rights, though he does not specify the nature of the violation,

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The cases are: (1) McGee v. Stringer, et al., No. 17SF-CC00088 (24th Jud. Cir., St. Francois County) (petition for
writ of habeas corpus dismissed on December 18, 2017; no appeal filed); (2) McGee v. Moll, et al., No. 17SF-CC00089
(24th Jud. Cir., St. Francois County) (petition for writ of habeas corpus dismissed on December 18, 2017; no appeal
filed); (3) McGee v. Weible, et al., No. 17SF-CC00132 (24th Jud. Cir., St. Francois County) (42 U.S.C. § 1983
complaint dismissed without prejudice for failure to state a claim on July 18, 2017; no appeal filed); and (4) McGee
v. Inman, et al., No. 17SF-CC00133 (24th Jud. Cir., St. Francois County) (case consolidated with No. 17SF-CC00088
on July 19, 2017).

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or provide a clear request for relief. (Docket No. 1 at 1). Attached to the document, is a notation
indicating that petitioner wishes to seek release pursuant to Mo. Rev. Stat. § 552.040. (Docket No.
1 at 4).
Based on this, the Court has construed petitioner’s action as a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. However, because the petition is not on a Court form, it is
missing relevant procedural information about petitioner’s case. In particular, it is unclear what
state case petitioner is actually attempting to challenge, and the basis for that challenge. As such,
the Court will direct the Clerk of Court to send to petitioner a copy of the Court’s 28 U.S.C. § 2254
form. Petitioner must fill out the form in its entirety and return it to the Court. See E.D. Mo. L.R.
2.06(A) (“All actions brought by self-represented plaintiffs or petitioners should be filed on Courtprovided forms”).
Petitioner is advised that in filling out his § 2254 form, he must make clear the conviction
that he is challenging. If petitioner is seeking conditional or unconditional release from
confinement pursuant to Mo. Rev. Stat. § 552.040, he must demonstrate that he has exhausted his
state court remedies before filing this action. See Wayne v. Missouri Bd. of Probation & Parole,
83 F.3d 994, 996 (8th Cir. 1996) (stating that a petitioner in state custody seeking relief pursuant
to 28 U.S.C. § 2254 must first exhaust available state remedies before pursuing federal habeas
relief).
Petitioner will be given thirty days in which to comply. Failure to submit an amended
petition on a Court form within thirty (30) days will result in the dismissal of this action without
prejudice and without further notice.
The Court notes that petitioner has also failed to either pay the filing fee or file a motion
for leave to proceed in forma pauperis. The Court will direct the Clerk of Court to send to petitioner

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Case: 4:20-cv-01575-NAB Doc. #: 4 Filed: 11/17/20 Page: 3 of 3 PageID #: 30

a copy of the Court’s motion to proceed in forma pauperis form. Petitioner will be given thirty
(30) days in which to return the form or pay the filing fee. Failure to comply with this order will
result in the dismissal of this action without prejudice and without further notice.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall send to petitioner a copy of the
Court’s 28 U.S.C. § 2254 form.
IT IS FURTHER ORDERED that petitioner must file an amended 28 U.S.C. § 2254
petition within thirty (30) days of the date of this order.
IT IS FURTHER ORDERED that if petitioner does not submit an amended petition
within thirty (30) days, this action will be dismissed without prejudice and without further notice
from the Court.
IT IS FURTHER ORDERED that the Clerk of Court shall send to petitioner a copy of
the Court’s motion to proceed in forma pauperis form.
IT IS FURTHER ORDERED that petitioner shall either submit a motion for leave to
proceed in forma pauperis or pay the filing fee within thirty (30) days of the date of this order.
IT IS FURTHER ORDERED that if petitioner fails to file a motion to proceed in forma
pauperis or pay the filing fee within thirty (30) days, this action will be dismissed without
prejudice and without further notice.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 17th day of November, 2020.

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