Waseem Daker v. Neil Warren

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 19, 2019
• Docket: 16-17459
• Status: Unpublished

Opinion

Case: 16-17459 Date Filed: 06/19/2019 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-17459 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:14-cv-03180-RWS, 1:13-cv-01554-RWS

WASEEM DAKER,

Petitioner – Appellant,

versus

NEIL WARREN, Sheriff, Cobb County,

Respondent – Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(June 19, 2019)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM: Case: 16-17459 Date Filed: 06/19/2019 Page: 2 of 6

Waseem Daker appeals pro se the district court’s order consolidating his two

28 U.S.C. § 2254 petitions. He also appeals the district court’s order denying his

Rule 59(e) motion to vacate the consolidation and dismissal of his two pending

petitions. The district court did not abuse its discretion by consolidating Mr. Daker’s

petitions, so we affirm.

I

Mr. Daker was sentenced to life plus 47.5 years after a Georgia jury found

him guilty of several crimes, including murder. He subsequently filed a pro se

habeas petition under § 2254 raising 171 claims. The district court dismissed that

petition because he failed to pay the filing fee, and he appealed.

While his appeal was pending, Mr. Daker filed a second § 2254 petition that

incorporated all of the same grounds in his original petition, as well as three

additional claims. Two weeks later, he filed a 993-page amended § 2254 petition

raising 393 claims. The district court struck the amended petition because of its

length and because of Mr. Daker’s failure to use the proper form. The court also

ordered Mr. Daker to file, within 21 days, a second amended petition that was no

longer than 50 pages. Mr. Daker challenged the court’s order and instructions

through numerous motions. The court denied these motions, but granted extensions

for Mr. Daker to file each time.

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Meanwhile, in Mr. Daker’s initial appeal, we vacated the district court’s

dismissal of his original § 2254 petition. See Daker v. Comm’r, Georgia Dep’t of

Corr., 820 F.3d 1278, 1281 (11th Cir. 2016). On remand, the district court

consolidated the two pending § 2254 petitions (the initial petition and the one filed

while the appeal was pending) and administratively closed the first case. That left

the subsequent petition as the only pending petition.

The district court then ordered Mr. Daker to file a second amended petition

that conformed to the federal and local rules of procedure. Because “Daker himself

ha[d] acknowledged that . . . only in the [second] Case has Daker offered any

‘supporting facts’ for his 393 grounds for relief,” the court found both petitions

insufficient absent an amended petition. After granting several extensions to file,

and having failed to receive a second amended petition by the deadline, the court

dismissed Mr. Daker’s consolidated case.

Mr. Daker then filed a second amended petition, along with a Rule 59(e)

motion asking the district court to vacate its order consolidating his two cases and

dismissing his second petition. The court denied his motion because it found that

the record supported consolidation. Both habeas cases challenged Mr. Daker’s

convictions, and the second habeas petition explicitly incorporated by reference all

of the grounds of his original petition.

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Mr. Daker then sought a certificate of appealability (“COA”) to challenge the

district court’s two rulings—the one consolidating the two habeas petitions and the

one dismissing the consolidated habeas petitions. We denied Mr. Daker a COA to

appeal the dismissal of his consolidated habeas petition, but determined that he did

not need a COA to appeal the district court’s consolidation order.

II

Federal Rule of Civil Procedure 42(a) permits a district court to consolidate

two actions that “involve a common question of law or fact.” “We review a district

court’s decision whether to consolidate multiple actions only for a clear abuse of

discretion.” Eghnayem v. Boston Scientific Corp., 873 F.3d 1304, 1313 (11th Cir.

2017) (quotation omitted). When exercising its discretion to consolidate, a court

must consider: (1) whether the specific risks of prejudice and confusion are

overborne by the risk of inconsistent adjudications of common factual and legal

issues, (2) the burden on parties, witnesses, and available judicial resources posed

by multiple lawsuits, and (3) the length of time required to conclude multiple suits,

and (4) the relative expense of all concerned. See Hendrix v. Raybestos-Manhattan,

Inc., 776 F.2d 1492, 1495 (11th Cir. 1985). We also review for abuse of discretion

the district court’s denial of a Rule 59(e) motion to alter or amend the judgment. See

Lambert v. Fulton Cty., Ga., 253 F.3d 588, 598 (11th Cir. 2001).

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The district court did not abuse its discretion by consolidating Mr. Daker’s

duplicative habeas petitions. As Mr. Daker expressly stated in his second petition,

that petition “incorporate[ed] all 171 grounds” from the original petition that was

then pending on appeal. See D.E. 46 at 2. The second petition then added an

additional 222 grounds for relief. All of these claims were based on the same set of

operative facts because both petitions challenged Mr. Daker’s original trial and

conviction. The district court found that the balance of factors weighed in favor of

consolidation “to avoid wasteful duplication of effort, unnecessary delay, and

possible inconsistency of results.” D.E. 46 at 3. That was not error. See In re Air

Crash at Fla. Everglades on Dec. 29,1972, 549 F.2d 1006, 1013 (5th Cir. 1977)

(describing Rule 42(a) as a “broad grant of authority”).

On appeal, Mr. Daker argues that the district court erred in consolidating his

two habeas petitions by failing to notify him and give him time to object, but he has

pointed to no case—nor are we aware of one—that requires a district court to notify

the parties before consolidation. In fact, the general rule appears to be that a district

court can order consolidation sua sponte. See Charles Alan Wright, et al., 9A

Federal Practice & Procedure § 2383 (3d ed. April 2019).

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III

The district court’s consolidation of Mr. Daker’s two habeas petitions is

affirmed.