Opinion
No. 1:18-cv-01205-JDB-jay
04-04-2019
JOHN WESLEY McKINNEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER DISMISSING CASE AND DIRECTING CLERK TO TERMINATE MOTION
Peggy Stanley McKinney, on behalf of federal prisoner John Wesley McKinney ("McKinney"), has filed a pro se motion to vacate, set aside, or correct McKinney's sentence (the "Petition"), pursuant to 28 U.S.C. § 2255. (Docket Entry ("D.E.") 1.) Ms. Stanley McKinney purports to file the Petition on her husband's behalf pursuant to a power of attorney. (D.E. 1 at PageID 16.) The Petition is before the Court for preliminary review.
Under 28 U.S.C. § 1654, "[p]arties may proceed in federal court only pro se or through counsel." Williams v. Fink, No. 17-CV-11014, 2017 WL 3444751, at *2 (E.D. Mich. May 5, 2017) (italics added) (quoting Williams v. United States, 477 F. App'x. 9, 11 (3d Cir. 2012)); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (Section 1654 "does not permit plaintiffs to appear pro se where interests other than their own are at stake.") Therefore, although "[a] power of attorney . . . may confer certain decision-making authority under state law, . . .it does not permit" the grantee "to represent [the prisoner] pro se in federal court." Fink, 2017 WL 3444751, at *2 (dismissing habeas petition signed by prisoner's mother under power of attorney). In addition, Fed. R. Civ. P. 11(a) provides that "[e]very pleading . . . must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented." The Petition here is not signed by an attorney-at-law or by McKinney himself, and the power of attorney does not cure this problem.
The Clerk is DIRECTED to terminate the motion for an expedited ruling (D.E. 2). --------
The Petition is therefore DISMISSED without prejudice.
IT IS SO ORDERED this 4th day of April, 2019.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE