Kerr et al v. Jones et al

Filing 2

OPINION AND ORDER. Application for writ of habeas corpus 1 is DISMISSED. A certificate of appealability is DENIED. Signed by Judge Susan P. Watters on 11/30/2015. Mailed to Kerrs. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BILLINGS DIVISION

FILED
Ci'i-,rk· U.S District Court
._ istnct Of Montana
Billings

Cause No. CV 15-120-BLG-SPW

GEORGE CONRAD KERR; MELODY
FAYE KERR,
Petitioners,

OPINION and ORDER

vs.
BLAIR JONES, et al.,
Respondents.

This case comes before the Court on an application for writ of habeas corpus
under 28 U.S.C. § 2241. Petitioners George Conrad Kerr and Melody Faye Kerr
ask the Court to enjoin a foreclosure proceeding in state court.
The petition suffers from several defects. Most fundamentally, the writ of
habeas corpus is a remedy for severe restraints on an individual's liberty. Hensley
v. Municipal Court, 411 U.S. 345, 351 (1973). A foreclosure proceeding is a legal

means to deprive someone of property, not liberty. The writ of habeas corpus is not
available to challenge a deprivation of property. Nor do the Kerrs allege facts
sufficient to support an inference that they are subject to custody that could be
redressed by the writ. An individual's loss of real property does not mean the
individual "cannot come and go as he pleases." Id. As a petition for writ of habeas
corpus, the application is frivolous.
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Construed as any other kind of civil action, the application remains
frivolous. "The normal thing to do when federal courts are asked to enjoin pending
proceedings in state courts is not to issue such injunctions." Younger v. Harris, 401
U.S. 37, 45 (1971). The Kerrs allege they were not permitted to file a petition for
writ of habeas corpus as a separate civil action in the state court, so that their
privilege of habeas corpus has been unconstitutionally suspended. See Pet. (Doc. 1)
at 9. Whether their petition was filed as a separate action or within an ongoing
action, the Kerrs would ordinarily have an opportunity to air their claims and
defenses in the foreclosure proceedings in state court. The scant facts they allege
do not support an inference that they are being deprived of their real property
without due process of law or that the state proceedings are inadequate to protect
their rights under federal and state law.
A certificate of appealability is not warranted as the Kerrs do not fairly
allege they are in custody. 28 U.S.C. § 2253(c). Should they choose to appeal this
disposition, their appeal would not be taken in good faith. Whatever its
jurisdictional basis, the action is wholly frivolous.

Accordingly, IT IS HEREBY ORDERED as follows:
1. Petitioners' application for writ of habeas corpus (Doc. 1) is DISMISSED.
2. A certificate of appealability is DENIED.
3. The Clerk of Court shall enter, by separate document, a judgment of
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dismissal.
4. Pursuant to Fed. R. App. P. 24(a)(4)(B), the Court CERTIFIES that any
appeal from this disposition would not be taken in good faith.
5. This action is closed. No motions for reconsideration or rehearing will be
entertained.
DATED this

Jo~ of November, 2015.

~r.u~
Susan P. Watters
United States District Court

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