Opinion
Case No. 8:13-cv-937-T-30TGW Criminal Case No. 8:09-cr-409-T-30TGW
04-16-2013
FAUSTO NEWBALL-ARCHBOLD, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
Before the Court is Petitioner's motion to vacate filed pursuant to 28 U.S.C. § 2255 (CV Dkt. 1). Petitioner is challenging his 2011 plea-based conviction and sentence for conspiracy to possess with intent to distribute 5 kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States.
Petitioner did not sign the § 2255 motion in accordance with Fed. R. Civ. P., Rule 11(a). Rather, Petitioner's niece, Natalia A. Oliver, signed the § 2255 motion (CV Dkt. 1 at p. 12).
Rule 11(a) states in pertinent part that "[e]very pleading. . .must be signed by. . .a party personally if the party is unrepresented."
Although Petitioner may seek legal assistance from others, this does not mean that a non-attorney may practice law in this Court. Section 1654 of Title 28 of the United States Code, does not allow unlicenced individuals to represent other individuals. "An individual who is not licensed as an attorney 'may not appear on another person's behalf in the other's cause.'" Bar-Navon v. Sch. Bd., 2006 U.S. Dist. LEXIS 78408, at *5 (M.D. Fla. Oct. 27, 2006) (quoting Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)). See also, Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2nd Cir. 1991) ("[Section 1654] does not allow for unlicensed laymen to represent anyone else other than themselves."); Local Rule 2.01(a) (M.D. Fla. 2009) ("No person shall be permitted to appear or be heard as counsel for another in any proceeding in this Court unless first admitted to practice in the Court pursuant to this rule.").
Nevertheless, Rule 2 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that a motion to vacate must "be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant." (emphasis added). The § 2255 motion, however, contains no proof that Natalia Oliver is Petitioner's niece, or that Petitioner authorized her to sign the § 2255 motion on his behalf. Moreover, to litigate this action on Petitioner's behalf as a "next friend," Oliver "must provide an adequate explanation--such as inaccessibility, mental incompetence, or other disability--why the real party in interest cannot appear on his own behalf to prosecute the action[,]. . .must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate[,]. . .and must have some significant relationship with the real party in interest." Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990).
See 2004 Amendments to Advisory Committee Notes ("The Committee envisions that the courts would apply third-party, or 'next-friend,' standing analysis in deciding whether the signer was actually authorized to sign the motion on behalf of the movant.").
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Oliver has failed to allege or demonstrate that Petitioner lacks access to this Court, is incompetent, or suffers from a disability preventing him from litigating this action on his own behalf. Therefore, Oliver has failed to establish "next friend" standing. Consequently, the § 2255 motion she filed on Petitioner's behalf does not meet the requirements of the Rules Governing Section 2255 Proceedings.
ACCORDINGLY, the Court ORDERS that:
1. The § 2255 motion (CV Dkt. 1) is DISMISSED. The dismissal is without prejudice to Petitioner filing a new action under a new case number.
2. The Clerk shall transmit two copies of the form for use in § 2255 cases to Petitioner with his copy of this Order.
3. The Clerk shall terminate all pending motions, and close this case.
DONE and ORDERED in Tampa, Florida on April 16, 2013.
___________
JAMESS. MOODY , JR.
UNITED STATES DISTRICT JUDGE
SA:sfc
Copy to: Petitioner pro se