noting the circumstances under which a pro se filing must be construed as a habeas petition
How later courts described this case
- noting the circumstances under which a pro se filing must be construed as a habeas petition
- a federal court may grant an extension of time to file a § 2255 motion only “upon or after filing an actual section 2255 motion”
- denying prisoner’s motion for discovery filed in anticipation of later filing a § 2255 motion; “a prisoner simply contemplating the filing of a § 2255 motion has no ongoing case and is in a wholly ‘prelitigation’ posture”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
PHILLIP C. STEPHENS,
Petitioner,
v. Case No. 5:25-cv-129-TKW-MJF
FLORIDA DEPT OF
CORRECTIONS,
Respondent.
/
REPORT AND RECOMMENDATION
The undersigned recommends that the District Court dismiss this
case for lack of subject-matter jurisdiction.
I. BACKGROUND
On May 19, 2025,1 Phillip Stephens, proceeding pro se, filed a
document titled “Notice of Filing a § 2254 for a Writ of Habeas Corpus
Petition under 28 U.S.C.” Doc. 1. Stephens’s filing requested that the
1 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is
deemed filed on the date it is delivered to prison authorities for mailing.”
Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009).
Page 1 of 5
clerk of court send Stephens “a true copy of the paperwork to file this
proceeding in forma pauperis (requesting indigent form).” Doc. 1 at 2.
On June 4, 2025, the undersigned notified Stephens this his filing
was construed as a “Notice” and not as a habeas corpus petition, because
the filing did not contain any allegations sufficient to support a claim for
relief under 28 U.S.C. § 2254. Doc. 3 (citing Stewart v. United States, 646
F.3d 856, 857 n.1 (11th Cir. 2011) (noting the circumstances under which
a pro se filing must be construed as a habeas petition). The undersigned
warned Stephens that unless he filed an actual habeas petition on the
Northern District’s § 2254 petition form by June 25, 2025, this case would
be dismissed for lack of subject-matter jurisdiction. Doc. 3. The clerk of
court mailed Stephens the Northern District’s § 2254 petition form and a
form application for leave to proceed in forma pauperis. See Doc. 3 (docket
text).
In response, Stephens filed a motion for leave to proceed in forma
pauperis, Doc. 4, but has not filed a habeas petition.
II. DISCUSSION
“Federal courts do not lightly grant relief in non-existent cases. Still
less do they offer advisory opinions about what they might do if an action
Page 2 of 5
were filed.” United States v. Asakevich, 810 F.3d 418, 420-21 (6th Cir.
2016) (prisoner could not ask district court to grant extension of time to
file motion to vacate under 28 U.S.C. § 2255 before a § 2255 motion was
actually filed; prisoner was seeking an advisory opinion concerning
whether he could obtain an extension for a collateral proceeding not yet
in existence); see also Green v. United States, 260 F.3d 78, 82 (2d Cir.
2001) (a federal court may grant an extension of time to file a § 2255
motion only “upon or after filing an actual section 2255 motion”)
(emphasis added).
Because Stephens has not filed an actual § 2254 petition, there is
no case or controversy to be heard, and the District Court lacks subject-
matter jurisdiction to address any motions, procedural matters, or
substantive matters. Swichkow v. United States, 565 F. App’x 840, 844
(11th Cir. 2014) (“[B]ecause Swichkow had yet to file an actual § 2255
motion at the time he sought an extension to the limitations period, there
was no actual case or controversy to be heard. Thus, the district court
properly concluded that it lacked jurisdiction to consider Swichkow’s
requests for an extension of time to file a § 2255 motion absent a formal
request for habeas relief.”); see also United States v. Cuya, 964 F.3d 969,
Page 3 of 5
972-73 (11th Cir. 2020) (denying prisoner’s motion for discovery filed in
anticipation of later filing a § 2255 motion; “a prisoner simply
contemplating the filing of a § 2255 motion has no ongoing case and is in
a wholly ‘prelitigation’ posture”); Brown v. United States, 438 F.2d 1385,
1385 (5th Cir. 1971) (denying motion for copy of trial transcript for use
in future collateral attack on conviction where “Brown had no petition for
a post conviction remedy pending at the time of his motion and his motion
failed to set forth any grounds of attack on his sentence”).
III. CONCLUSION
For the reasons set forth above, the undersigned respectfully
RECOMMENDS that the District Court:
1. DISMISS this case without prejudice for lack of subject-
matter jurisdiction.
2. DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 30th day of June, 2025.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
Page 4 of 5
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C); Fed. R. Civ. P.
72(b). Objections to these proposed findings and
recommendations must be filed within fourteen days of
the date of the report and recommendation. Any
different deadline that may appear on the electronic
docket is for the court’s internal use only. A party must
serve a copy of any objections on all other parties. A
party who fails to object to this report and
recommendation waives the right to challenge on
appeal the District Court’s order based on unobjected-
to factual and legal conclusions. See 11th Cir. R. 3-1; 28
U.S.C. § 636.
Page 5 of 5