United States District Court, E.D. Arkansas, Western Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge Susan Webber Wright. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of the entry of this Recommendation. The failure to timely
file objections may result in waiver of the right to appeal
questions of fact.
Roy Lee Smith (“Smith”), is a prisoner in the
Arkansas Department of Correction. He has filed this pro
se Petition for Declaratory relief requesting a
declaration that United States District Judge Brian S. Miller
and United States Magistrate Judge Patricia Harris violated
his rights to due process by denying him federal habeas
relief in Smith v. Kelley, Eastern District of
Arkansas No. 5:15- CV-00234 (“Smith v.
Kelley”). Doc. 1. More specifically, Smith
alleges that Defendants erred in applying Stone v.
Powell “to systematically refuse to
consider” his Fourth Amendment claim on federal habeas
review, and he requests that this Court declare that the
rejection of his first federal habeas claim was
to the screening function mandated by 28 U.S.C. § 1915A,
the Court recommends that the case be dismissed, with
judges are entitled to absolute immunity from lawsuits
arising from their judicial functions. Mireles v.
Waco, 502 U.S. 9, 11-12 (1991); Stump v.
Sparkman, 435 U.S. 349, 356 (1978). Smith's claims
against Defendants arise from their judicial functions. Thus,
those claims must be dismissed, with prejudice, because
Defendants are entitled to absolute immunity. However, a
dismissal based on absolute immunity is not a strike, as
defined by 28 U.S.C. § 1915(g). Castillo-Alvarez v.
Krukow, 768 F.3d 1219, 1220 (8th Cir. 2014).
Failure to State a Claim
this case must also be dismissed because Smith has failed to
state a claim upon which relief may be granted. Rather than
seeking permission to attack his state conviction directly,
through a successive habeas, Smith invokes the Declaratory
Judgment Act, 28 U.S.C. § 2201, (“DJA”), and
seeks to accomplish indirectly what he is prohibited from
doing directly - having another federal district court take
another look at the merits of the § 2254 claim he raised
and lost in Smith v. Kelley.
well-established law, Smith has failed to state a cognizable
DJA claim. Gajewski v. United States, 368 F.2d 533,
534 (8th Cir. 1966) (“we are unaware of any authority
which would permit the federal declaratory judgment statute,
28 U.S.C.A § 2201 ... to be used as a post-conviction
remedy”), cert. denied, 386 U.S. 913 (1967);
Waldon v. State of Iowa, 323 F.2d 852, 853 (8th Cir.
1963) (providing a “state prisoner is not entitled to
seek a declaratory determination from the federal courts
under 28 U.S.C.A. § 2201 as to the validity of the
judgment on which he is confined” in order to
circumvent the exhaustion requirement of § 2254);
Sumpter v. Johnson, No. 4:01-CV-157-E, 2001 WL
406229, at *1 (N.D. Tex. Apr.18, 2001) (finding declaratory
judgment act cannot be used as a substitute for habeas
THEREFORE RECOMMENDED THAT:
case be DISMISSED, WITH PREJUDICE, because Defendants are
entitled to absolute immunity.
Dismissal count as a “STRIKE, ” as defined by 28
U.S.C. § 1915(g) because Plaintiff Smith has also failed