United States District Court, W.D. Louisiana
March 30, 2015
WARDEN LOUISIANA STATE PENITENTIARY, Section P.
REPORT AND RECOMMENDATION
C. MICHAEL HILL, Magistrate Judge.
Before the court are various pleadings which have been construed as petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by pro se petitioner Donald Burgo on February 10, 2015. Petitioner is an inmate in the custody of the Louisiana Department of Public Safety and Corrections, incarcerated at the Louisiana State Penitentiary in Angola, Louisiana.
In his rambling pleadings, Burgo appears to challenge his 2006 convictions for cruelty to the infirm, entered in the 16th Judicial District Court for St. Mary Parish, and his subsequent August 30, 2006 adjudication as an habitual offender, for which he is serving an eight year concurrent sentence. Petitioner additionally complains about events connected to the succession action of his adopted father, James Samuel Burgo.
By separate pleading [rec. doc. 9], Burgo seeks a preliminary injunction to prohibit Warden Cain and the State of Louisiana from enforcing certain restrictions upon his release from prison, as well as an injunction against attorney Robert P. Fuhrer, who presumably represented Burgo's daughter (the decedent's granddaughter) and adoptive mother (Lois Sampey Burgo) against petitioner's challenges in the succession proceeding, from taking action on behalf of his clients.
LAW AND ANALYSIS
This court's records demonstrate that petitioner filed three previous federal petitions for writ of habeas corpus in which he attacked these same convictions. Donald Burgo v. Robert Henderson, Warden, No. 6:10-cv-1647, 2011 WL 1188703 and 2011 WL 2357218 (W.D. La. 2011); Burgo v. Warden C. Paul Phelps Correctional Center, 6:11-cv-1338 (W.D. La. 2011) and Burgo v. Warden C. Paul Phelps Correctional Center, 6:12-cv-705 (W.D. La. 2012).
Petitioner has also previously unsuccessfully attempted to remove his deceased adoptive father's succession action to this Court, in an attempt to annul the Judgment of Possession issued therein, disposing of the decedent's property in accordance with his Last Will and Testament, to his surviving spouse, Lois Sampey Burgo. Burgo v. James S. Burgo Succession, 6:14-cv-3078 (W.D. La. 2014).
The first habeas petition was denied and dismissed with prejudice on March 25, 2011 because the petition was barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Petitioner's request for a certificate of appealability was denied on September 13, 2011 by the United States Court of Appeals for the Fifth Circuit. Donald Burgo v. Robert Henderson, Warden, No. 11-30355 (5th Cir. 2011).
The second habeas petition was deemed a second and successive petition filed without authorization from the Fifth Circuit in accordance with 28 U.S.C. § 2244(b)(3)(A), thereby rendering this court without jurisdiction to proceed. Accordingly, the petition was transferred to the Fifth Circuit. Petitioner's request for authorization to file a second or successive petition was denied on May 3, 2012 by the United States Court of Appeals for the Fifth Circuit. In re: Donald Burgo, No. 12-30110 (5th Cir. 2012).
The third habeas petition was likewise deemed a second and successive petition filed without authorization from the Fifth Circuit in accordance with 28 U.S.C. § 2244(b)(3)(A), thereby rendering this Court without jurisdiction to proceed. Accordingly, the petition was transferred to the Fifth Circuit. Petitioner's request for authorization to file a second or successive petition was dismissed by the United States Court of Appeals for the Fifth Circuit on December 2, 2014. In re: Donald Burgo, No. 14-31199 (5th Cir. 2014).
This Court's research reveals that on December 4, 2013, the United States Court of Appeals for the Fifth Circuit denied another request by petitioner for authorization to file a second or successive petition. In re: Donald Burgo, No. 13-31091 (5th Cir. 2013).
On October 13, 2014, petitioner attempted to remove his father's Louisiana State court succession action to this Court. The action was remanded for lack of jurisdiction on December 18, 2014. Petitioner's appeal was dismissed by the United States Court of Appeals for the Fifth Circuit on March 17, 2015. Burgo v. James S. Burgo Succession, No. 14-31417 (5th Cir. 2014).
This is Burgo's fourth attempt to collaterally attack, in this federal Court, his Louisiana State court convictions for cruelty to the infirm and the habitual offender sentence imposed by the Sixteenth Judicial District Court for St. Mary Parish, Louisiana, which were the subject of his three previous federal habeas petitions. The instant action is therefore unquestionably a § 2254 action which under 28 U.S.C. § 2244 is "second or successive".
The petition attacks the same convictions and sentence that was the subject of Burgo's three previous petitions. The claims raised herein either were or could have been raised in the previous petitions. Moreover, Burgo's first petition was adjudicated on the merits.
As Burgo is obviously aware, given his prior attempts to obtain authorization from the Fifth Circuit, before a second or successive petition may be considered by this Court, petitioner must obtain authorization to file the second or successive petition from the Fifth Circuit in accordance with 28 U.S.C. § 2244(b)(3)(A). The record does not show in this case that petitioner has received such authorization. To the contrary, this Court's records and those of the Fifth Circuit demonstrate that the Fifth Circuit has expressly denied petitioner such authorization on numerous occasions. Until such time as petitioner obtains said authorization, this Court is without jurisdiction to proceed. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
The law is clear that this Court cannot entertain the merits of this petition without authorization from the Fifth Circuit as mandated by 28 U.S.C. § 2244(b)(3)(A). The record fails to show that petitioner has received such authorization from the Fifth Circuit. Therefore, the undersigned finds that this petition, insofar as it seeks federal habeas corpus relief, should be dismissed.
To the extent that petitioner seeks this Court's intervention into the Louisiana succession action of his adoptive father, for the same reasons previously found with respect to petitioner's attempt to remove his father's succession, this Court is without jurisdiction to grant petitioner any relief. Federal courts cannot administer succession proceedings, or take control over, or dispose of, succession property. See Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 298 (1946) ("a federal court has no jurisdiction to probate a will or administer an estate", nor can a federal court "interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in custody of the state court...."); Washington v. Riley, 2012 WL 2339116, at *3.
Furthermore, under the Rooker-Feldman doctrine, this Court does not have jurisdiction to undertake review of the Louisiana State Courts' final rulings in the succession action which were apparently adverse to Burgo. See Washington v. Riley, 2012 WL 2339116 at *3 citing Pease v. First National Bank, 335 Fed.Appx. 412, 415 (5th Cir. 2009) citing D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and Johnson v. De Grandy, 512 U.S. 997, 1005-1006, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).
Finally, this Court cannot grant an injunction against Warden Cain or the State of Louisiana from enforcing certain restrictions upon petitioner's release from prison, nor can this Court enjoin attorney Robert P. Fuhrer from taking action on behalf of his clients. A movant for a preliminary injunction must demonstrate each of the following: 1) a substantial likelihood of success on the merits; 2) a substantial threat that failure to grant the injunction will result in irreparable injury; 3) the threatened injury outweighs any damage that the injunction will cause to the adverse party; and 4) the injunction will not have an adverse effect on the public interest. Women's Med. Ctr. of Northwest Houston v. Bell, 248 F.3d 411, 419 at fn. 15 (5th Cir. 2001) citing Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998). The movant must prove all four elements and failure to prove any one of them will result in denial of the motion. Enterprise Intern., Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985). Burgo fails to satisfy the first element because there is no substantial likelihood of success on the merits.
The imposition of post-custody conditions of release by the State is plainly Constitutional. Convicted felons on release "are not entitled to the full panoply of rights and protections possessed by the general public." United States v. Wayne, 591 F.3d 1326, 1333 at fn. 5 (10th Cir. 2010) citing Banks v. United States, 490 F.3d 1178, 1187 (10th Cir. 2007) and United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ("probationers do not enjoy the absolute liberty to which every citizen is entitled."); see also United States v. Kincade, 379 F.3d 813, 833 (9th Cir. 2004). Indeed, the Supreme Court has noted that "[a] broad range of choices that might infringe constitutional rights in a free society fall within the expected conditions... of those who have suffered a lawful conviction, " McKune v. Lile, 536 U.S. 24, 36, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and that "conditional releases may claim only... conditional liberty properly dependent on observance of special parole restrictions' that extend substantially beyond the ordinary restrictions imposed by law on an individual citizen.'" Kincade, 379 F.3d at 834 citing Morrissey v. Brewer, 408 U.S. 471, 478, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Likewise, the complained of actions of attorney Robert P. Fuhrer are not subject to judicial curtailment. Attorneys are obligated to zealously represent their clients without the threat of suit from third parties compromising that representation. First National Bank of Durant v. Trans Terra Corp., 142 F.3d 802, 807 (5th Cir. 1998). Fuhrer merely represented his clients, Burgo's adoptive mother and daughter) in his adoptive father's succession proceeding and obtained a judgment of possession in their favor from the Court therein. Fuhrer additionally, apparently, obtained a restraining order prohibiting Burgo from contacting his clients upon his release from custody.
Given that Burgo was convicted of cruelty to the infirm after attacking both his mother and now deceased father, that action can in no way be deemed unreasonable. See Burgo v. Stratton, 6:09-1166, 2010 WL 582737, *1 (W.D. La. 2010) citing Burgo v. Ruiz, 6:09cv1165 (W.D. La. 2009) and State v. Burgo, 07-0227, 958 So.2d 1217 (La.App. 1st Cir. 6/8/07) (unpublished).
IT IS THEREFORE RECOMMENDED that the instant second and successive petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Donald Burgo be DISMISSED WITH PREJUDICE for lack of jurisdiction.
IT IS FURTHER RECOMMENDED that any request by Burgo for this Court to intervene into the Louisiana succession action of his deceased adoptive father, James Samuel Burgo, be DISMISSED.
IT IS FURTHER RECOMMENDED that Burgo's Motion for a Preliminary Injunction [rec. doc. 9] be DENIED.
Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy of any objections or response to the District Judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).