Minnlee v. United States Secret Service et al

Filing 4

ORDER OF DISMISSAL DENYING 1 Motion for Leave to Proceed in forma pauperis. The Court DISMISSES WITHOUT PREJUDICE Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. The Court DENIES Petitioner a certificate of appealability. Signed by Judge Kathleen Cardone. (fm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
BARRY DWAYNE MINNFEE,
TDCJ No. 1300468,
Petitioner,
v.
RICK THALER,1 Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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EP-11-CV-380-KC

ORDER OF DISMISSAL
Petitioner Barry Dwayne Minnfee (“Minnfee”), a pro se state prisoner currently
incarcerated at the Estelle Unit in Huntsville, Texas, claims in an application to proceed in forma
pauperis that he has insufficient funds to pay the filing fee for a a writ of habeas corpus petition
brought pursuant to 28 U.S.C. § 2254. In his petition, Minnfee alleges that various state officials
plan to murder him in prison, and he asks that the Court to intervene and order his placement in
federal protective custody.
Minnfee has a lengthy history of criminal convictions, frivolous civil rights complaints,
and meritless habeas corpus petitions. For example, on July 23, 2002, a state court in Potter
County, Texas, found Minnfee guilty of aggravated assault with a deadly weapon and sentenced
him to two years’ imprisonment. Further, on May 2, 2005, a state court in Fort Bend County,
Texas, found him guilty of robbery with bodily injury and sentenced him to life imprisonment.
During these and other periods of confinement, Minnfee filed over eighty unsuccessful civil
1

Although Petitioner Minnfee named the United States Secret Service as the Respondent in this
matter, the rules governing § 2254 cases provide that “[i]f the petitioner is currently in custody under a
state-court judgment, the petitioner must name as respondent the state officer who has custody.” See 28
U.S.C.A. § 2254 PROC . R. 2(a) (West 2011). Rick Thaler, as the Director of the Correctional Institutions
Division for the Texas Department of Criminal Justice, exercises custody over Minnfee. Thus, he is the
proper Respondent.

rights and habeas lawsuits in at least four states. As a result, United States District Courts in
Texas barred him from proceeding in forma pauperis under the three strikes provision of 28
U.S.C. § 1915(g).2 Moreover, the Fifth Circuit Court of Appeals issued a sanction and
preclusion order in Minnfee v. Quarterman, No. 07-50446 (5th Cir. 2007), because Minnfee
continued to file frivolous, unauthorized successive, and malicious lawsuits. In the order [ECF
No. 3],3 the Fifth Circuit imposed a $100.00 monetary sanction and ordered District Clerks to
refuse further pleadings until he paid the sanction:
The Clerks of all Federal District Courts in this Circuit are directed to refuse
to accept further pleadings of any kind from Minnfee, including notices of
appeal, in previously filed suits or any new suit, unless he provides proof that
he has paid the sanction. Even if Minnfee provides proof that he has paid the
sanction in full, he is warned that further frivolous filings will invite the
imposition of additional sanctions which will include restrictions to his
access to the Courts of this Circuit.4
Minnfee claims in a handwritten statement attached to his application that he paid the sanction.
Court records maintained by the Fifth Circuit do not, however, support this assertion.
Accordingly, the Court finds that Minnfee has not paid the sanction and that the El Paso
Division clerk should have refused Minnfee’s application and petition. It appears, however, that
the clerk did not know about the sanction and preclusion order. Therefore, the Court enters the
following orders.
1.

The Court DENIES Petitioner Barry Dwayne Minnfee’s application to proceed in

2

Minnfee v. Coutee, No. 5:03-CV-35 (W.D. Tex. Apr. 28, 2003); Minnfee v. Robertson Unit, No.
1:03-CV-23 (N.D. Tex. Feb 6, 2003); Minnfee v. v. Shepard, No. 2:02-CV-242 (N.D. Tex. Sept. 9, 2002);
Minnfee v. Swart, No. 2:96-CV-274 (N.D. Tex May 26, 1999); Minnfee v. Keeling, No. 2:96-CV-235
(N.D. Tex. May 2, 1997).
3

Order on Appeal from the United States District Court for the Western District of Texas, filed
June 6, 2007.
4

Id. at 3.

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forma pauperis pursuant to the sanction and preclusion order issued by the Fifth Circuit Court of
Appeals on June 6, 2007.
2.

The Court DISMISSES WITHOUT PREJUDICE Petitioner Barry Dwayne

Minnfee’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
3.

The Court DENIES Petitioner Barry Dwayne Minnfee a certificate of

appealability.
4.

The Court DENIES all pending motions, if any, as moot.

5.

The Court DIRECTS the District Clerk to comply, in the future, with the sanction

and preclusion order concerning Barry Dwayne Minnfee issued by the Fifth Circuit Court of
Appeals on June 6, 2007.
6.

The Court FURTHER DIRECTS the District Clerk to electronically serve a copy

of this order via CM/ECF on the counsel for the Respondent, the Texas Attorney General,
directed to the attention of Edward Marshall, Assistant Attorney General, Chief of
Postconviction Litigation Division, and Laura Haney.
SO ORDERED.
SIGNED this 22nd day of September 2011.

______________________________________
KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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