Wilson v. Inch

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-81450-CIV-ALTMAN

TARVIS WILSON,

Petitioner,

vs.

MARK S. INCH, et al.,

Respondent.

_________________________/

ORDER

THIS MATTER comes before the Court on the Writ of Mandamus filed by the

Petitioner, Tarvis Wilson (the “Petition”) [ECF No. 1]. On December 12, 2019, United States

Magistrate Judge Lisette M. Reid issued a Report and Recommendation (the “Report”) [ECF No.

9], in which she suggested that the Petition should be dismissed. See generally Report.

PROCEDURAL HISTORY

The Petitioner filed his Petition on October 24, 2019. See generally Pet. This Court

referred that Petition to United States Magistrate Judge Lisette M. Reid, who issued her Report

on December 12, 2019. See generally Rep.

The Report also warned the Petitioner that “[o]bjections to this report may be filed with

the District Judge within fourteen days of receipt of a copy of the report. Failure to do so will bar

a de novo determination by the district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the Magistrate Judge.” Id. at 4. But the Petitioner did

not file any objections. Instead, on December 27, 2019, the Petitioner filed a motion for

extension of time within which to submit his objections. See Motion for Extension of Time [ECF

No. 10]. The Court granted that motion on January 5, 2020, and extended the deadline to file

objections to January 15, 2020. See January 5, 2020 Order [ECF No. 11]. The Court did not

receive the Petitioner’s Objections to the Report until January 22, 2020. See Objections [ECF

No. 9].

THE LAW

When a magistrate judge’s “disposition” has been objected to, district courts must review

that disposition de novo. FED. R. CIV. P. 72(b)(3). But when no party has timely objected, “the

court need only satisfy itself that there is no clear error on the face of the record in order to

accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation omitted).

Although Rule 72 itself is silent on the standard of review, the Supreme Court has acknowledged

that Congress’ intent was to require a de novo review only where objections have been properly

filed—and not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It

does not appear that Congress intended to require district court review of a magistrate [judge]’s

factual or legal conclusions, under a de novo or any other standard, when neither party objects to

those findings.”). In any event, the “[f]ailure to object to the magistrate [judge]’s factual findings

after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th

Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)).

Normally, the Petitioner’s Objections [ECF No. 13]—received one week after the

expiration of the Court’s extended deadline—would have been untimely. But, under the

“prisoner mailbox rule,” a pro se prisoner’s filing is deemed “filed” as of the date “he delivered

the [document] to prison authorities for forwarding to the District Court.” Houston v. Lack, 487

U.S. 266, 270 (1988). And, from the face of the Objections, it appears that the Petitioner mailed

his Objections (through prison officials) on January 12, 2020. See Objections at 1. Because the

Petitioner handed his Objections to prison officials before the expiration of the Court’s extended

deadline, the Court will deem those Objections timely filed and review them de novo.

ANALYSIS

I. The Report

The Petitioner—who is incarcerated in the Santa Rosa Correctional Institution in Milton,

Florida—asks this Court to issue a Writ of Mandamus directing the state court to overturn three

orders it entered in the Petitioner’s state post-conviction proceedings. See Pet. at 1. But, as the

Report correctly noted, federal courts “have no jurisdiction to issue writs of mandamus to direct

state courts and their judicial officers in the performance of their duties where mandamus is the

only relief sought.” Moye v. Clerk, DeKalb Cnty. Superior Court, 474 F.2d 1275, 1276 (5th Cir.

1973) (citation omitted).1 For this reason alone, the Petition must be dismissed for lack of subject

matter jurisdiction.

II. The Petitioner’s Objections

The Petitioner filed four Objections to the Report—each directed at the Report’s

conclusion that he is not entitled to a writ of mandamus. All are unpersuasive and must be

overruled.

A. The First Objection

The Petitioner first takes issue with the Report’s conclusion that the common law writ of

mandamus has been abolished because, he says, the Report “fail[s] to address . . . FLA R. CIV.

PROC. 1.540(b).” Objections at 1–2. Later in this same Objection, the Petitioner cites 28 U.S.C. §

2106 as support for the proposition that judgments based on fraudulent orders must be set aside.

Id. at 2. Both arguments are meritless.

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh

Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit

before the close of business on September 30, 1981.

First, FLA. R. CIV. P. 1.540—like its federal analog, FED. R. CIV. P. 60—applies only to

civil judgments entered in the same court in which the rule is invoked. Because the “judgment”

the Petitioner seeks to set aside (here in federal court) is an Order Denying Rehearing (entered in

his state post-conviction case), these rules simply do not apply to him.

Second, 28 U.S.C. § 2106 does nothing more than codify the federal appellate courts’

authority to “affirm, modify, vacate, set aside or reverse any judgment . . . lawfully brought

before it for review.” By its own terms, then, § 2106 does not apply either to this Court or to

judgments un-lawfully brought before the appellate courts.

B. The Second Objection

The Petitioner next argues that FLA. R. CIV. PROC. 1.540(b) and 28 U.S.C. § 1651

combine to authorize a writ of mandamus under the facts of this case. Again, he is mistaken.

First, as discussed above, FLA. R. CIV. PROC. 1.540(b) does not apply in this context.

Second, the All Writs Act, 28 U.S.C. § 1651, authorizes federal courts to issue only those

writs that are “necessary or appropriate in aid of their respective jurisdictions and agreeable to

the usages and principles of law.” It does not, as the Petitioner suggests, authorize a federal court

to overturn an administrative order entered in a criminal defendant’s state post-conviction

proceeding—unless doing so would be necessary to “protect the federal court’s jurisdiction.”

Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1110–111 (11th Cir. 2004). This may occur,

for example, when the prosecution of a state-court action would require the state judge to

adjudicate an issue that has already been settled under the terms of a federal settlement

agreement. See, e.g., Keishian v. Buckley, 752 F.2d 1513, 1515 (11th Cir. 1984).

But this case does not implicate any federal settlement agreement—nor, it goes without

saying, did the state court’s adjudication of the Petitioner’s post-conviction proceedings

otherwise require this Court to protect its own jurisdiction. Thus, the Petitioner’s passing citation

to the All Writs Act does not salvage his Petition.

C. The Third Objection

Third, the Petitioner contends that, by quoting the Petition’s reference to “ministerial

duty,” the Report engaged in improper “blackberry picking.” Objections at 3. The Court is not

entirely clear on what this Objection means. Either way, this passing citation to the Petitioner’s

own submission was entirely unnecessary to the Report’s ultimate conclusion that the Petitioner

is not entitled to a writ of mandamus. Indeed, “federal courts have no general power to issue

writs of mandamus to direct state courts and their judicial officers in the performance of their

duties[—ministerial or not—]where mandamus is the only relief sought.” Lamar v. 118th

Judicial Dist. Court of Tex., 440 F.2d 383, 384 (5th Cir. 1971).

D. The Fourth Objection

Lastly, the Petitioner objects to a footnote in the Report—in which Judge Reid

determined that the Petition would fail even if it had been brought as a habeas petition—because

“[t]his Court can re-title [the] Writ as [a §2241 petition] and forward [it] to the Pensacola

Division with good faith.” Objections at 4 (cleaned up). In this footnote, Judge Reid concluded

that this Court would lack subject-matter jurisdiction over the Petition, even if it were stylized as

a § 2241 habeas petition, because the Petitioner is currently incarcerated outside of the Southern

District of Florida. See Report at 3 n.1.

But 28 U.S.C. § 2241 allows inmates to bring petitions in two places: “in the district

court for the district wherein such person is in custody or in the district court for the district

within which the State court was held which convicted and sentenced him.” 28 U.S.C. § 2241(d).

Although the Petitioner is incarcerated in Milton, Florida (which is, admittedly, outside of this

District), he was convicted in the Fifteenth Judicial Circuit in and for Palm Beach County. See

generally Petition Ex. 1 [ECF No. 1-1] at 194. And that court is indisputably within this District.

This Court, in other words, would have subject-matter jurisdiction over the Petition if it had been

brought under § 2241.

But the Petition would still fail in any case. To begin with, because the Petitioner is in

custody pursuant to a state-court judgment, see generally Pet. Ex. 1, the requirements of 28

U.S.C. § 2254 would apply to his § 2241 petition. See Thomas v. Crosby, 371 F.3d 782, 787

(11th Cir. 2004) (“If the terms of § 2254 apply to a state habeas petitioner—i.e., if he is ‘in

custody pursuant to the judgment of a State court’—then we must apply its requirements to

him.”). And § 2254 relief is available only to inmates who allege that they are “in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In

other words, § 2254 does not extend to petitioners who allege defects only in their state post-

conviction proceedings. See Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004) (“[A]n

alleged defect in a collateral proceeding does not state a basis for habeas relief.”); see also

Carroll v. Sec’y, DOC, 574 F.3d 1354, 1365 (11th Cir. 2009) (collecting cases). This is because

“a challenge to a state collateral proceeding does not undermine the legality of the detention or

imprisonment—i.e., the conviction itself—and thus habeas relief is not an appropriate remedy.”

Carroll, 574 F.3d at 1365.

The Petitioner, of course, does not challenge either his underlying conviction or the

validity of his custody. Instead, his Petition complains only about the state court’s decision to

deny three motions he filed in his post-conviction proceeding—to which § 2254 simply does not

apply. See Pet. at 1, 12; Pet. Ex. 1 at 65–68, 185. In short, even if the Petitioner had brought his

claim under § 2241, he would “not state a basis for habeas relief.” Cf. Brown v. Inch, No. 4:17-

CV-509-MW/MJF, 2019 WL 7598696, at *18 (N.D. Fla. Dec. 16, 2019), report and

recommendation adopted, No. 4:17CV509-MW/MJF, 2020 WL 264973 (N.D. Fla. Jan. 16,

2020) (dismissing similar action).

TK

Accordingly, the Court hereby

ORDERS AND ADJUDGES that the Report [ECF No. 9] is ACCEPTED and

ADOPTED as follows:

1. The Petition [ECF No. 1] is DISMISSED.

2. The Clerk of Court is directed to CLOSE this case, and any pending motions are

DENIED as moot.

DONE AND ORDERED in Fort Lauderdale, Florida, this 31st day of January 2020.

ae

UNITED STATES DISTRICT JUDGE

cc: counsel of record