Marcus Fletcher v. Warden Kevin R Chappell et al

Filing 5

ORDER DISMISSING PETITION by Judge R. Gary Klausner, (shb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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) CV 13-4988 RGK
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Petitioner,
) ORDER DISMISSING PETITION
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v.
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KEVIN CHAPPELL, Warden,
California State Prison at San Quentin, )
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Respondent.
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MARCUS FLETCHER,

I.

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BACKGOUND
Petitioner was convicted and sentenced to death in Riverside County for the

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April 2005 murder of Rafi Ibrahim, a convenience store clerk, and the attempted

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murder of Celesdino Olea, a customer at the store. The crimes were committed

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during the course of a robbery.1 The judgment of death was entered against

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Petitioner on November 18, 2011 and he applied for counsel on direct appeal with

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the Supreme Court of California on December 23, 2011.2 Counsel has not yet

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been appointed.

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As this matter is still on direct appeal, the facts of the underlying offense have been taken from a news article in
the Riverside Press Enterprise found at http://www.pe.com/local-news/local-news-headlines/20110727-temeculadeath-to-clerk-s-killer-jury-says.ece.
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Procedural information on the underlying appeal has been taken from the California Supreme Court docket located
at http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1998485&doc_no=S198309
ORDER DISMISSING PETITION - 1

On July 11, 2013, Petitioner filed a document entitled “28 U.S.C. § 2403(b)

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Intervention by United States or State: ‘Constitutional Question’”. (Docket No. 1.)

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On July 26, 2013 Petitioner filed a second document entitled “Notice of

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Amendment to Complaint.” (Docket No. 3.) At the time of his sentence,

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Petitioner was ordered to pay statutorily mandated restitution. He is apparently

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seeking mandamus or injunctive relief from this Court directing the State of

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California to stop taking 55% of all money Petitioner obtains in prison in

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satisfaction of the restitution order. Petitioner believes the state’s actions amount

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to an unconstitutional taking or seizure since his direct appeal is still pending and

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thus there is no final adjudication of his guilt or the reasonableness of his sentence.

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II.

DISCUSSION
Petitioner has cited 28 U.S.C. § 2403(b) apparently for the proposition that

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he should be allowed to bring his putative constitutional claims in federal court.

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That statute provides that a state may be allowed to intervene in an action where

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the constitutionality of a state law is in question. Id. However, it specifically

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limits those instances to cases where, for obvious reasons, the state or one of its

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officials or employees is not already a party to the action. Id. Kevin Chappell, the

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Warden of the State Prison at San Quentin where Petitioner is housed, is an

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employee of the State of California and the respondent in this action. For that

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reason, the provisions of 28 U.S.C § 2403(b) allowing for intervention do not

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apply. Petitioner cannot invoke this Court’s jurisdiction by way of that statute.

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Further, Petitioner cannot secure this Court’s jurisdiction through the Anti-

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Terrorism and Effective Death Penalty Act of 1996 (AEDPA) codified at 28

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U.S.C. § 2254. Though AEDPA will provide a mechanism for Petitioner’s

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challenges to his conviction and sentence when his direct appeal is complete, it

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does not provide the mechanism through which Petitioner may challenge the

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state’s actions in seizing money in satisfaction of the restitution order. Habeas

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proceedings are not designed to provide an avenue for prisoners to challenge the
ORDER DISMISSING PETITION - 2

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imposition of or execution of a restitution order. This is because the language of

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section 2254 precludes federal courts from reviewing challenges to the non-

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custodial portion of criminal sentences. Bailey v. Hill, 599 F.3d 976, 981 (9th

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2010).

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Petitioner may believe that the All Writs Act applies to this case. Other pro

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se litigates have recently sought to invoke federal court jurisdiction by way of that

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statute. In an effort to avoid unnecessary future pro se filings in that regard, the

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Court will address that statute here. The All Writs Act empowers federal courts to

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issue “all writs necessary or appropriate in aid of their respective jurisdictions and

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agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). But Petitioner

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cannot establish this Court’s jurisdiction over his state court conviction and

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sentence and the All Writs Act does not create that jurisdiction. By it’s plain

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language it allows the Court to issue orders in support of its jurisdiction in a given

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case. However, federal court jurisdiction is a necessary prerequisite to the issuance

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of those orders or writs. That jurisdiction does not exist here. Petitioner’s direct

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appeal is pending before the California Supreme Court and he is free to raise his

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claims in that forum. Principles of comity and federalism limit this Court’s ability

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to interfere with state court appellate proceedings that may vindicate the very

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rights that Petitioner seeks to have considered in this forum. Petitioner may yet

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obtain relief from the restitution order.

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Finally, addressing Petitioner’s claim that the collection of the restitution

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before his appeal has been heard creates a due process violation, the Court notes

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that Petitioner’s conviction and sentence are presumptively valid. He was charged,

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tried, and convicted by a jury of his peers. That same jury made a sentencing

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recommendation based on evidence before it and the trial judge imposed sentence,

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including the restitution order, consistent with state statute. He has been afforded

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the process he was due. Well established state appellate procedures continue to

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ORDER DISMISSING PETITION - 3

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afford him due process in the review of the propriety of his conviction and

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sentence. It is not this Court’s role to interfere with those proceedings.

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For all of the forgoing reasons, this matter is dismissed with prejudice.

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IT IS SO ORERED.

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Dated this 8th day of August, 2013

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_____________________________
R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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ORDER DISMISSING PETITION - 4