Thomas v. Conway

Filing 19

ORDER denying with prejudice 18 Motion for Declaratory Judgment. Signed by Hon. Michael A. Telesca on 08/29/14. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TIMOTHY R. THOMAS,
Petitioner,
No. 6:08-CV-6583(MAT)
DECISION AND ORDER

-vJAMES CONWAY, Acting Superintendent,
Attica Correctional Facility,
Respondent.

I.

Introduction
On January 21, 2011, this Court issued a Decision and Order

(Dkt #12) denying the pro se application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 sought by Timothy R. Thomas
(“Petitioner”). Judgment (Dkt #13) was entered on January 24, 2011,
and Petitioner filed a notice of appeal (Dkt #14) with the Second
Circuit. On November 2, 2011, a Second Circuit mandate (Dkt #16)
was filed in this Court dismissing Petitioner’s appeal. On May 21,
2013, a Second Circuit mandate (Dkt #17) denying Petitioner’s
motion for an order authorizing a successive 28 U.S.C. § 2254
petition was filed on this Court’s docket. On July 30, 2014,
Petitioner filed a Motion For Declaratory Judgment (Dkt #18). For
the reasons discussed below, the motion is denied with prejudice.
II.

Motion for Declaratory Judgment
In his motion for declaratory judgment pursuant to 28 U.S.C.

§§ 2201, 2201, Petitioner alleges that “attorneys in the office of
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the State of New York also United States attorney for the Western
District

of

New

York

[of]

having

evaded

core

constitutional

questions, having failed to address the character and jurisdiction
of the Internal Revenue Service. . . . instead having relied on
accommodation of judicial officers in the United States District
Courts. . .” Dkt #18, p2. The relief he seeks is $25 million “or
[an] order [directing] the release of plaintiff from the New York
State Department of Correction and Community Supervision, or REMAND
of the case to the Rochester County Supreme Court of the Western
District of New York to prove if a contract exis [sic] between
plaintiff, the Courts, and the attorneys office where the trial
causes were conducted in non-compliances [sic] with the provisions
of Article III.” Id.
“The Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, .
. . provides that a court ‘may declare the rights . . . of any
interested party,’ and contemplates that district courts will
exercise

discretion

in

determining

whether

to

entertain

such

actions,” State Auto Ins. Companies v. Summy, 234 F.3d 131, 133 (3d
Cir. 2000) (internal citations omitted). This statute has been
characterized as “an enabling Act, which confers a discretion on
the courts rather than an absolute right upon the litigant.”
Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (internal
quotations omitted).
Assuming arguendo that Petitioner has stated an actual case or

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controversy as required by 28 U.S.C. § 2201(a), thereby giving this
Court has jurisdiction over his request for declaratory judgment,
the Court

finds

that

it

must

decline entertain

the

request.

Petitioner’s argument that he only can be prosecuted for crimes in
New York state courts if a contractual relationship exists between
him and the judiciary presents an “indisputably meritless legal
theory”

which

contentions.”
IV.

is

“predicated

on

clearly

baseless

factual

Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).

Conclusion
For the foregoing reasons, Petitioner’s Motion for Declaratory

Judgment (Dkt #18) is denied with prejudice. The Court hereby
certifies that any appeal from this Decision and Order would not be
taken in good faith, and accordingly denies Petitioner leave to
appeal in forma pauperis. The Court also finds that Petitioner has
failed

to

make

a

substantial

showing

of

the

denial

of

a

constitutional right, see, 28 U.S.C. § 2253(c)(2), and therefore
declines to issue a certificate of appealability.
IT IS SO ORDERED.

S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

August 29, 2014
Rochester, New York

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