Schipke v. United States of America

Filing 22

ORDER denying 13 Motion for Release/Discharge Hearing; denying 16 Motion for Common Law Writ of Mandamus; denying 17 Motion to Appoint Counsel. Further ordered the Clerk of Court is directed to update movant's address with the listed address and mail Movant the court-approved forms for filing a civil rights complaint and Application to Proceed In Forma Pauperis to use in filing a new action pursuant to Bivens. Signed by Magistrate Judge Bernardo P Velasco on 9/26/11.(BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mary Elizabeth Schipke,

No. CV 10-001-TUC-CKJ (BPV)
No. CR 04-2195-TUC-CKJ (BPV)

Movant,

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ORDER

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vs.

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United States of America,
Respondent.

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Presently pending before the Court is Movant’s “Motion for Release/Discharge

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Hearing” (Doc. 13); “Motion for Common Law Writ of Mandamus – Petition for

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Enforcement of Civil Rights (Emergency)” (Doc. 16); “Motion for Appointment of

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Counsel 18 U.S.C. §3006A or for Alternative Relief (Immediate Relief Requested)”

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(Doc. 17).

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Motion to Appoint Counsel

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While there is no constitutional right to counsel on federal collateral review, see

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Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), this Court has discretion to appoint

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counsel for movants seeking relief under 28 U.S.C. § 2255 when “the interests of justice

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so requires.” 18 U.S.C. § 3006A(a)(2)(B).

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Movant has not made the necessary showing for appointment of counsel at this

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time. Movant alleges that she is indigent, chronically-ill, disabled, and being subjected to

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“First Amendment Retaliation,” and additionally, suffers from “[Segregated Housing

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Unit “SHU”] Syndrome” after “6 ½ months of prison torture in the SHU.” (Doc. 17) The

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case is fully briefed, and no evidentiary hearing has been set.

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Movant otherwise seeks relief concerning her conditions of confinement at

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Florence Correctional Center, Florence, Arizona. To seek relief against prison officials

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for violations of constitutional or federal statutory rights, a federal inmate must file an

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action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),

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rather than a habeas petition. Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991); see

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Nelson v. Campbell, 541 U.S. 637, 643 (2004) (“constitutional claims that merely

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challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary

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or injunctive relief, fall outside [the] core [of habeas relief] and may be brought pursuant

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to § 1983”); Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity

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of any confinement or to particulars affecting its duration are the province of habeas

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corpus . . . ; requests for relief turning on the circumstances of confinement may be

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presented in a § 1983 action.”); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing

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Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (a civil rights action is the proper method

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to challenge conditions of confinement)). Accordingly, appointment of counsel at this

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stage of the proceedings would serve no purpose, as counsel could not pursue issues

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regarding Movant’s conditions of confinement in this §2255 petition. Movant’s motion

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for appointment of counsel will be denied without prejudice. If, at a later date, the Court

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determines that an evidentiary hearing is required, counsel will be appointed in

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accordance with Rule 8(c) of the Rules Governing Section 2255 Proceedings.

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Motion for Common Law Writ of Mandamus – Petition for Enforcement of Civil Rights

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Also pending before the Court is Movant’s motion to “obtain her immediate relief

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from unconstitutional confinement, and from cruel and unusual punishment, at [Florence

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Correctional Center]. (Doc. 16.)

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To the extent that Movant seeks injunctive or compensatory relief based upon

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prison officials’ alleged violation of her constitutional or federal statutory rights, Movant

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must commence an action pursuant to Bivens. When bringing a Bivens action, a prisoner

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must either pay the $350.00 filing fee in a lump sum or, if granted the privilege of

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proceeding in forma pauperis, pay the fee incrementally as set forth in 28 U.S.C. §

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1915(b)(1). An application to proceed in forma pauperis requires an affidavit of

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indigence and a certified copy of the inmate’s trust account statement for the six months

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preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). To assist prisoners in

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meeting these requirements, the Court requires use of a form application. LRCiv 3.4(a).

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The Clerk of Court will mail Movant the court-approved forms for filing a civil rights

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complaint and Application to Proceed In Forma Pauperis (Non-Habeas) to use in filing a

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new action pursuant to Bivens.

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To the extent Movant is requesting enforcement of a court order that she be

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immediately transferred to the Federal Medical Center (FMC) Carswell in Fort Worth,

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Texas, this Court’s review of the related criminal docket (CR 04-2195-TUC-CKJ)

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demonstrates that, at the time of the final disposition hearing, the District Judge made a

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recommendation that Movant be designated to FMC Carswell where she could receive

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the appropriate medical and mental health treatment required. Id., Doc. 593. Such

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recommendations are non-binding. See18 U.S.C. 3621(b). Nonetheless, a review of the

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appellate court docket indicates that the United States Attorney had informed the Circuit

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Court, on September 6, 2011, that he anticipated Movant’s designation to FMC Carswell.

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(C.A. No. 11-10266, DktEntry 6-1) A review of the Federal Bureau of Prisons inmate

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locator website has confirmed this designation1.

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For these reasons, Movant’s motion will be denied as moot.
Motion for Release/Discharge Hearing

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Also pending before the Court is a memorandum filed on June 8, 2011, designated

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a “Motion for Release/Discharge Hearing.” (Doc. 13) In addition to the motion, two

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additional attachments were filed. (Docs. 14, 15.)

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www.bop.gov
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To the extent Movant again raises issues of the appointment of counsel, release

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from solitary confinement, and transfer to FMC Carswell for medical treatment, these

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issues have been discussed and decided above or are resolved by her transfer to FMC

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Carswell, a Federal Medical Center, and are thus denied as moot.

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To the extent Movant seeks relief based upon prison officials’ alleged violation of

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her constitutional or federal statutory rights, Movant is again advised that, to the extent

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that Movant seeks injunctive or compensatory relief based upon prison officials’ alleged

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violation of her constitutional or federal statutory rights, Movant must commence an

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action pursuant to Bivens.

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To the extent this motion is filed in reply to the Government’s response to

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Movant’s motion to vacate, set aside or correct sentence by a person in federal custody, it

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is untimely pursuant to the District Court’s screening order allowing Movant thirty (30)

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days to file a reply. (Doc. 4) The Government’s response was filed on May 27, 2010.

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(Doc. 11) This motion was filed over a year later, on June 8, 2011, (Doc. 13), and thus

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will be stricken as an untimely reply.

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To the extent Movant is attempting to raise new claims of ineffective assistance of

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counsel during Movant’s trial (see Doc. 13, p.3), these claims are not properly before the

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Court. Because Movant has failed to raise the issues, as required by Rule 2(b) of the

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Rules Governing Section 2255 Proceedings, they are not properly before this Court. Cf.

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Mayle v. Felix, 545 U.S. 644 (2005) (citing Rule 2(c) of the Rules Governing §2254

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Cases, which instructs Movant to “specify all grounds of relief available” and to “state

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the facts supporting each ground”); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th

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Cir.1994) (indicating that the only habeas claims a district court will consider are those

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contained in the habeas petition itself or those raised in an amended petition or statement

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of additional claims). Movant has not filed a motion to amend her petition pursuant to

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Rule 15 of the Federal Rules of Civil Procedure, and, accordingly, the Court will not

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consider any new claims raised for the first time in these papers.

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To the extent Movant is raising new claims regarding the District Court’s

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revocation of supervised release, Movant presently has a direct appeal from the

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revocation of supervised release, judgment and sentence pending in the United States

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Court of Appeals for the Ninth Circuit (No. 11-10266). For reasons of judicial economy,

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district courts should not consider an application for writ of habeas corpus when the

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Movant has a direct appeal pending in the Court of Appeals or the Supreme Court. United

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States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997). “ ‘Except under most unusual

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circumstances ... no defendant in a federal criminal prosecution is entitled to have a direct

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appeal and a section 2255 proceeding considered simultaneously in an effort to overturn

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the conviction and sentence.’ “ Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988)

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(quoting Jack v. United States, 435 F.2d 317, 318 (9th Cir.1970)). See also Rule 5, Rules

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Governing Section 2255 Proceedings for the United States District Courts, Advisory

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Comm. Note (1976) ( “[T]he courts have held that [a § 2255 motion] is inappropriate if

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the movant is simultaneously appealing the decision.”). There are no unusual

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circumstances that would justify an exception to this rule. Furthermore, as discussed

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above, because Movant has failed to raise the issues, as required by Rule 2(b) of the

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Rules Governing Section 2255 Proceedings, such claims are also not properly before this

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Court.

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To the extent that this motion requests that her pending pro se “Motion Under 28

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U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody”

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(“Motion”). (Doc.# 1.) be granted, or an evidentiary hearing be set, the motion will be

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denied as untimely and duplicative. The Magistrate Judge has taken the matter under

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advisement, and in due course, after it has fully considered the documents filed by the

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parties, including the motion, the answer, any transcripts, and records of prior

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proceedings, and any materials submitted under Rule 7, will determine whether an

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evidentiary hearing is warranted, and file proposed findings of fact and recommendations

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for disposition. See Rules 8(a) and 8(b), 28 U.S.C. foll. § 2255.

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Accordingly, for all these reasons, Movant’s Motion for Release/Discharge (Doc.

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13) will be denied.

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Warnings:

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Address Changes

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Movant was previously warned, in the Court’s January 12, 2010 order (Doc. 4.)

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that she must file and serve a notice of change of address in accordance with Rule 83.3(d)

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of the Local Rules of Civil Procedure. Movant was warned that failure to comply may

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result in dismissal of this action. Movant is again admonished that failure to file and serve

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a notice of change of address will likely result in dismissal of this action.

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Accordingly,
IT IS THEREFORE ORDERED:
(1) Movant’s Motion for the Appointment of Counsel (Doc. No. 17) is
DENIED WITHOUT PREJUDICE.
(2) Movant’s Motion for Common Law Writ of Mandamus – Petition for
Enforcement of Civil Rights (Doc. 16) is DENIED as moot.
(3) Movant’s Motion for Release/Discharge Hearing (Doc. 13) is DENIED.

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IT IS FURTHER ORDERED the Clerk of Court is DIRECTED to:

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(4) UPDATE Movant’s address with the following address:

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Mary Elizabeth Schipke
Reg. 01690-184
FMC Carswell
Federal Medical Center
P.O. Box 27137
Fort Worth, TX 76127

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(5) MAIL Movant the court-approved forms for filing a civil rights complaint

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and Application to Proceed In Forma Pauperis (Non-Habeas) to use in

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filing a new action pursuant to Bivens.

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Dated this 26th day of September, 2011.

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