United States District Court, S.D. Illinois
JOHNNY GARRETT a/k/a Johnnie Garrett, (a/k/a Johnnie Garrett), No. N-20411, Petitioner,
ATTORNEY GENERAL, STATE of ILLINOIS, and PEOPLE of the STATE of ILLINOIS, Respondents.
MEMORANDUM AND ORDER
R. Herndon, Judge
Garrett, a/k/a Johnnie Garrett, a state prisoner, has filed a
document in this action which the Court has liberally
construed as a Petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, because Garrett states he is seeking
“A time cut or reduction of sentence.” (Doc. 1,
p. 1). When he submitted the pleading, Garrett did not pay
the $5.00 filing fee, nor did he submit a motion for leave to
proceed in forma pauperis (IFP).
receipt of Plaintiff's pleading, the Clerk immediately
sent him a letter (Doc. 2) advising him of the case number
and filing fee requirements for a habeas corpus action. He
was warned that if he did not submit either the $5.00 filing
fee or a motion for leave to proceed in forma
pauperis (IFP) within 30 days, his case would be subject
to dismissal. He was provided with a blank form motion for
IFP. Plaintiff's 30-day deadline of May 5, 2017, has come
and gone, and Plaintiff has failed to respond in any way.
This action is therefore subject to dismissal for failure to
the Court would give a petitioner one last chance to either
pay the filing fee or submit a motion for leave to proceed
IFP before dismissing the action. However, in Garrett's
case, this step would be a waste of time and of the
Court's limited resources. Garrett has already proven
himself to be a pestiferous filer of frivolous and
incomprehensible pleadings and motions, with no regard for
this Court's rulings. The instant pleading (Doc. 1) is
similar to those he has filed in other actions. It is
incoherent, made up of disjointed references to courts in
various other states; movie titles, actors, Disney, and
Hollywood; references to the U.S. President and lists of
claims such as “failure to perform a task or fulfill an
obligation” (Doc. 1, pp. 2-4); and lists of addresses
in various states (Doc. 1, pp. 5-6). There is no legal
argument or grounds for habeas corpus relief contained in the
document. It is utterly frivolous, and would be subject to
dismissal even if Garrett were to pay the $5.00 filing fee.
result of Garrett's persistent frivolous filings despite
his having “struck out” under 28 U.S.C. §
1915(g), his flagrant disregard of the requirements of
Federal Rule of Civil Procedure 11(b), and his failure to
submit any coherent response to the undersigned Judge's
order to show cause in Garrett v. Warden or Sheriff of
Illinois, Case No. 17-cv-100-DRH (Doc. 22 in Case No.
17-cv-100-DRH, entered March 22, 2017), Garrett has been
banned from filing new civil actions in this Court until he
pays a $500.00 fine. (Doc. 61 in Case No. 17-cv-100-DRH,
entered April 18, 2017). That order also sanctioned Garrett
by directing that any future collateral attack or habeas
corpus action filed by him would be deemed denied after 30
days, unless the Court orders otherwise. Id.
case at bar was filed by Garrett before the filing ban was
imposed on him. However, at the time he filed this action on
April 5, 2017, Garrett's Case No. 17-cv-100-DRH had
already been dismissed on February 10, 2017, with a warning
that sanctions would be imposed if he continued to file
frivolous papers or actions in this District. (Doc. 4 in Case
No. 17-cv-100-DRH). Despite this warning, Garrett filed 12
frivolous post-judgment motions in Case No. 17-cv-100-DRH,
which prompted the order to show cause in that action. (Doc.
22 in Case No. 17-cv-100-DRH). Instead of submitting any
document responsive to the March 22, 2017, order to show
cause, Garrett filed 38 additional frivolous motions and
other documents in that case. He also filed the instant
habeas action during the period following the March 22, 2017,
order to show cause. Based on this record, and the frivolous
nature of the instant habeas pleading, this case shall be
dismissed without further delay.
THEREFORE ORDERED that this habeas action is DISMISSED WITH
PREJUDICE for failure to prosecute. Fed.R.Civ.P. 41(b);
see generally James v. McDonald's
Corp., 417 F.3d 672, 681 (7th Cir. 2005); Ladien v.
Astrachan, 128 F.3d 1051 (7th Cir. 1997); Lucien v.
Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (dismissal for
failure to prosecute is presumptively with prejudice).
Clerk is DIRECTED to CLOSE THIS CASE and enter judgment
is REMINDED of the sanctions imposed in Garrett v. Warden
or Sheriff of Illinois, Case No. 17-cv-100-DRH,
which are still in effect:
[U]ntil such time as Garrett has paid the $500.00 fine to the
Clerk of this Court in full, the CLERK is DIRECTED to return
unfiled any papers that Garrett tenders in civil litigation
in this Court, other than a collateral attack or habeas
action. All papers filed in a collateral attack or habeas
action will be received and reviewed by this Court, but shall
be deemed DENIED after thirty days, absent a contrary order
of the Court. Should Garrett continue to file frivolous
actions, the fine is subject to increase. This filing
restriction applies to any and all frivolous pleadings or
papers filed by Garrett in this District, other than those
specifically exempted herein.
(Doc. 61, pp. 3-4, in Case No. 17-cv-100-DRH). Exempt from
that filing ban were a notice of appeal in Case No.
17-cv-100-DRH, and any papers Garrett seeks to file in a
civil or criminal case in which he is a party defendant.
Garrett wishes to appeal the dismissal of this case,
his notice of appeal will be exempt from the filing ban, and
must be filed with this court within thirty days of the entry
of judgment. Fed. R. App. P. 4(a)(1(A). However, if the
appeal is frivolous, this Court will not grant him leave to
proceed in forma pauperis (“IFP”) in an
appeal from the dismissal of this action. Instead, he will be
liable for the $505.00 appellate filing fee regardless of the
outcome of the appeal, unless the court of appeals allows him
to proceed IFP. See Fed. R. App. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d
724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181
F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper
and timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline. Fed. R.
App. P. 4(a)(4). A Rule 59(e) motion must be filed no more
than twenty-eight (28) days after the entry of the judgment,
and this 28-day deadline cannot be extended.
should Garrett desire to appeal this Court's ruling
dismissing his petition for a writ of habeas corpus, he must
first secure a certificate of appealability, either from this
Court or from the court of appeals. See Fed. R. App.
P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to 28 U.S.C.
§ 2253, a certificate of appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” This
requirement has been interpreted by the Supreme Court to mean
that an applicant must show that “reasonable jurists
would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Petitioner need not
show that his appeal will succeed, Miller-El v.
Cockrell, 537 U.S. 322, 337 (2003), but Petitioner must
show “something more than the absence of
frivolity” or the existence of mere “good
faith” on his part. Id. at 338 (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). If
the district court denies the request, a petitioner may
request that a circuit judge issue the certificate. Fed. R.
App. P. 22(b)(1)-(3).
reasons stated above, this action is dismissed for failure to
prosecute. Further, the Petition is frivolous and contains no
grounds for relief under 28 U.S.C. § 2254, and the Court
finds no basis for a determination that its decision is
debatable or incorrect. Thus, Garrett has not ...