Moore v. Schuetzle

Filing 55

ORDER by Senior Judge Patrick A. Conmy denying 53 Motion to Appoint Counsel ; dismissing 54 Motion for section 2255 relief. (MM) Distributed to Anthony Moore on 12/7/2011. (rs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Anthony Moore,

)
)
Petitioner,
)
)
vs.
)
Case No. 1:08-cv-72
)
Robyn Scmalenberger, Warden,
)
North Dakota State Penitentiary,
)
ORDER DISMISSING MOTION
)
Respondent.
)
______________________________________________________________________________
Before the Court is Moore’s pro se motion pursuant to 28 U.S.C. § 2255. The motion is
was filed November 18, 2011. Moore filed the motion in case number 1:08-cv-72 which is a
long since closed case Moore filed in 2008 pursuant to 28 U.S.C. § 2254. Moore’s § 2254
petition was dismissed as untimely. The Eighth Circuit Court of Appeals summarily affirmed
the dismissal.
Moore is a hobby litigant who has been clogging the state and federal dockets with
frivolous and misguided filings since his state court conviction for gross sexual imposition in
2001. He is serving a twenty-year sentence at the North Dakota State Penitentiary.
Section 2255 relief only is available to prisoners in custody pursuant to the judgment of a
federal court. A § 2255 motion should be filed in the original federal criminal case. A § 2254
petition, such as the one Moore filed in 2008, is an entirely new civil case brought by a prisoner
in custody pursuant to the judgment of a state court. Moore is a state prisoner, not a federal
prisoner. He is serving a sentence imposed by the State of North Dakota. Moore has no federal
convictions. Consequently, § 2255 relief is unavailable to Moore. In addition, it is entirely

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improper and procedurally impermissible to file a § 2255 motion in a closed § 2254 case. Moore
has confused the available remedies and procedures.
Because § 2255 relief is unavailable to Moore, it is HEREBY ORDERED that:
1.

Moore’s motion is DISMISSED. His motion for appointment of counsel is
DENIED.

2.

The Court certifies that an appeal from the denial of this motion may not be taken
in forma pauperis because such a appeal would be frivolous and cannot be taken
in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

3.

Upon the entire record before the Court, dismissal of the motion is not
debatable, reasonably subject to a different outcome on appeal, or
otherwise deserving of further proceedings. Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983). Therefore, a certificate of appealability will not be
issued by this Court.

4.

If the movant desires further review of his motion he may request issuance of a
certificate of appealability by a circuit judge of the Court of Appeals for the
Eighth Circuit in accordance with Tiedeman v. Benson, 122 F.3d 518, 520-22
(8th Cir. 1997).

Dated this 7th day of December, 2011.
/s/ Patrick A. Conmy
Patrick A. Conmy, Senior District Judge
United States District Court

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