Leach v. State of Arkansas

• Court: District Court, W.D. Arkansas
• Decided: February 2, 2023
• Docket: 2:22-cv-02191
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION

DAKOTAS W. R. LEACH1 PETITIONER

V. Civil No. 2:22-cv-02191-PKH-MEF

STATE OF ARKANSAS RESPONDENT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Before the Court is a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (ECF No. 1). Also pending is Petitioner’s Motion for Leave to Proceed in forma pauperis. (ECF No. 2). Due to a deficiency on the Motion for Leave to Proceed in forma pauperis, the Court entered an Order on December 19, 2022, directing that a completed Motion for Leave to Proceed in forma pauperis be filed no later than January 18, 2023. (ECF No. 4). Petitioner has failed to either pay the applicable filing fee or submit a completed Motion for Leave to Proceed in forma pauperis, and accordingly, the case should be summarily dismissed. I. BACKGROUND Petitioner, Dakotas W. R. Leach (“Leach”), filed his pro se petition under 28 U.S.C. § 2254 on December 16, 2022. (ECF No. 1). The Petition concerns his state criminal case before the 21st Judicial District, Division I, in the Circuit Court of Crawford County, Arkansas. See State of Arkansas v. Dakotas W. R. Leach, Case No. 17CR-22-507.2 As stated in Leach’s petition, on October 4, 2022, he pleaded guilty to Domestic Battery in the First Degree, in violation of Ark. Code Ann. § 5-26-303(b)(1), and he was sentenced to serve 36 months in the Arkansas Division

1 The Docket Report shows Petitioner’s name as “Dakota Leach.” His § 2254 Petition, however, lists his name as “Dakotas W. R. Leach.” According to state court records, the Petitioner’s full name is “Dakotas Winter Rain Leach.” See caseinfo.arcourts.gov. The Clerk of Court is directed to correct the Petitioner’s name on the Docket Report to reflect “Dakotas W. R. Leach.” 2 The Court located Leach’s state court case information on caseinfo.arcourts.gov. References to the state proceedings are taken from this information. of Correction, with 180 months suspended imposition of sentence. (ECF No. 1, p. 1). The state court Sentencing Order shows that Leach pleaded guilty to Domestic Battery in the First Degree, in violation of Ark. Code Ann. § 5-26-303(a)(5)(B). Leach initially filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a

Person in State Custody in this Court on November 9, 2022. (Dakotas W. R. Leach v. State of Arkansas, Case No. 2:22-cv-02172, ECF No. 1). That petition was dismissed without prejudice on December 2, 2022, for failure to pay the applicable filing fee or file a motion for leave to proceed in forma pauperis. (Id., ECF No. 3). In Leach’s current petition under 28 U.S.C. § 2254, filed on December 16, 2022, he alleges that he was “charged with the wrong evidence,” that the court was “not getting both side[s] of the story,” that he was originally charged with Domestic Battery in the Third Degree but it was “raised to Domestic Battery in the 1st Degree,” and that there was “video evidence of opposed victims coming and seeing me after having a no contact order placed on us.” (ECF No. 1). It is unclear what relief Leach seeks, because for relief he simply wrote “N/A.” (Id. at 15).

Contemporaneously with the filing of his § 2254 petition, Leach filed a document which was designated on the Docket Report as a Motion for Leave to Proceed in forma pauperis. (ECF No. 2). This document, however, is only the certificate of his prisoner account, a document that is to be submitted along with a completed, and signed under penalty of perjury, application to proceed in forma pauperis (AO 240). Due to this deficiency, the Court entered an Order on December 19, 2022, directing the Clerk to provide Leach with a blank application to proceed in forma pauperis (AO 240), and ordering Leach to complete, sign under penalty of perjury, and file the application no later than January 18, 2023. (ECF No. 4). To date, Leach has failed to either pay the applicable filing fee or file a completed, signed under penalty of perjury, application to proceed in forma pauperis. II. DISCUSSION Failure to Pay the Filing Fee or Submit a Completed IFP Application

Leach has failed to pay the applicable filing fee or submit a completed application to proceed in forma pauperis (“IFP”) as ordered by this Court. The Court’s Order (ECF No. 4) directing him to do so was not returned as “undeliverable.” That Order specifically advised Leach that failure to comply with the Court’s Order would subject his case to dismissal for failure to obey a court order. Id. The Federal Rules of Civil Procedure specifically contemplate dismissal of a case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating that the district court possesses the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule 41(b), a district court has the power to dismiss an action based on “the plaintiff’s failure to comply with any court

order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added). Leach has neither paid the applicable filing fee nor submitted a completed IFP application as ordered, and his case is subject to dismissal for that reason. III. CONCLUSION For the reasons discussed above, it is recommended that Leach’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) be DISMISSED WITHOUT PREJUDICE. The parties have fourteen (14) days from receipt of the Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this 2nd day of February 2023.

/s/ Mark E. Ford HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE