Fordjour v. Jordan, et al.

Filing 23

FINDINGS and RECOMMENDATIONS recommending that PETITIONER'S MOTION FOR IMMEDIATE RELEASE and EMERGENCY MOTION FOR ISSUANCE OF AN ORDER TO SHOW CAUSE, IMMEDIATE RELEASE, AND INJUNCTIVE RELIEF BE DENIED re 1 Petition for Writ of Habeas Corpus filed by Charles Fordjour signed by Magistrate Judge Sheila K. Oberto on 6/28/2010. Referred to Judge Wanger; (Objections to F&R due by 8/3/2010)(Marrujo, C)

1 2 3 4 5 6 7 8 9 10 CHARLES FORDJOUR, 11 Petitioner, 12 13 14 15 Respondents. 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus ostensibly pursuant to 28 U.S.C. § 2254. The matter has been v. KINGS COUNTY SHERIFF CHRIS JORDAN, et al., ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv--00060-OWW-SKO-HC FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S MOTION FOR IMMEDIATE RELEASE (DOC. 6) FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S EMERGENCY MOTION FOR ISSUANCE OF AN ORDER TO SHOW CAUSE, IMMEDIATE RELEASE, AND INJUNCTIVE RELIEF (Doc. 7) OBJECTIONS DEADLINE: 30 days

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the

Court are Petitioner's motion for immediate release on his own recognizance, filed on January 29, 2009, and Petitioner's emergency motion for immediate release, injunctive relief, and for issuance of an order to show cause, filed on March 2, 2009. I. Background

On June 8, 2009, the Court issued findings and 1

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recommendations to deny Petitioner's motions for release and for injunctive relief. (Doc. 10.) In the same document, the Court

also recommended dismissal of the petition because Petitioner, who complained of his pretrial detention with respect to state criminal charges, purported to proceed pursuant to 28 U.S.C. § 2254, which authorizes habeas relief for persons in custody pursuant to the judgment of a state court; however, there was no state court judgment due to the pretrial status of the relevant state court criminal proceedings.1 The Court adopted the findings and recommendation of the Magistrate Judge to dismiss the action, and the action was dismissed. Petitioner appealed the judgment. By order of the

United States Court of Appeals for the Ninth Circuit, filed on December 10, 2009, the judgment of dismissal was summarily vacated, and the case was remanded to allow the Court to consider Petitioner's previously filed objections to the findings and recommendations and to enter a new order. On April 1, 2010, the (Doc.

Magistrate Judge vacated the findings and recommendations. 21.)2

On April 14, the action was reassigned to the undersigned

Magistrate Judge. Because the findings and recommendations were vacated without exception, the Court concludes that Petitioner's two

1 If a petitioner is a pretrial detainee facing state criminal charges a n d thus is not in custody "pursuant to the judgment of a State court" at the t i m e the petition is filed, then the petition should proceed pursuant to 28 U . S . C . § 2241. 28 U.S.C. §§ 2254, 2241; Stow v. Murashige, 389 F.3d 880, 885 ( 9 t h Cir. 2004). 2

By separate order, the Court has considered the vacated findings and r e c o m m e n d a t i o n s and Petitioner's objections.

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motions concerning release remain pending. II. Petitioner's Motion for Immediate Release

On January 28, 2009, Petitioner filed a motion for immediate release on his own recognizance, arguing that he was entitled to release pursuant to state law. (Doc. 6.)

In habeas corpus proceedings, a district court has inherent power, derived from the power to issue the writ of habeas corpus itself and the habeas corpus statutes (28 U.S.C. §§ 2241-2255), to direct the release of a state prisoner on his or her own recognizance or on a surety. 507 (9th Cir. 1987). Marino v. Vasquez, 812 F.2d 499,

Fed. R. App. P. 23 governs release on bail.

The decision is made as appears fitting to the Court; relevant factors include the risk of flight, risk of danger to the community, the availability of alternative remedies to the petitioner. 812 F.2d at 508-09.

However, federal courts reserve bail pending resolution of a habeas corpus petition to "extraordinary cases involving special circumstances" and where there is a high probability of the petitioner's success on the merits. United States v. Mett, 41

F.3d 1281, 1282 (9th Cir. 1994), quoting, Land v. Deeds, 878 F.2d 318, 318-319 (9th Cir. 1989). Further, the petitioner must show

circumstances that make him exceptional and especially deserving of special treatment in the interests of justice. California, 328 F.2d 159, 162 (9th Cir. 1964). Benson v.

The Court must

also consider the petitioner's risk of flight and the danger to the community should the petitioner be released. Vasquez, 812 F.2d 499, 508-09 (9th Cir. 1987). In the present case, Petitioner has not alleged specific 3 Marino v.

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facts demonstrating that he is entitled to release. Accordingly, it will be recommended that Petitioner's motion for immediate release be denied. III. Petitioner's Motion for Issuance of an Order to Show Cause, Immediate Release, and Injunctive Relief

On March 2, 2009, Petitioner filed a motion for issuance of 6 an order to show cause, immediate release, and for injunctive 7 relief. 8 that he was subjected to torture and experimentation by 9 Respondents, custodians at the Kings County Jail, involving x10 rays, lasers, radiation, microwaves, and other electronic means. 11 He states that he suffered permanent injuries to his genitals as 12 a result. 13 and kidnaping. 14 any specific facts concerning the identity of the persons 15 engaging in such conduct, the particular injuries sustained, or 16 the dates, times, and precise conduct or events involved. 17 Insofar as Petitioner seeks an order to show cause to be 18 issued to Respondent to show why relief on the petition should 19 not be granted, Petitioner's motion is premature. 20 initial screening of the petition has not been completed, and the 21 action is not ready for disposition on the merits. 22 be recommended that Petitioner's motion for issuance of an 23 immediate order to show cause be denied. 24 To the extent that Petitioner seeks immediate release, 25 Petitioner has not shown that he is entitled to release on his 26 own recognizance or on bail. 27 With respect to Petitioner's motion for injunctive relief, 28 4 Thus, it will The Court's (Mot. 2, 4.) However, Petitioner does not state He also asserts that he was subject to illegal seizure (Doc. 7.) Petitioner asserts in the motion generally

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after reading the motion in its entirety, it is clear that Petitioner is challenging the conditions of his confinement, not the fact or duration of that confinement. It is established that relief by way of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 extends to a prisoner who shows that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3).

A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)

(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); advisory committee note to Rule 1 of the Rules Governing Section 2254 Cases (Habeas Rules), 1976 adoption. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S.

136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; advisory committee note to Habeas Rule 1, 1976 adoption. Because in the motions Petitioner seeks to challenge the conditions of his confinement, and not the legality or duration of his confinement, these particular claims are cognizable in a civil rights action rather than a petition for writ of habeas corpus. Accordingly, it will be recommended that the motion for injunctive relief be denied. IV. Recommendation

In accordance with the foregoing, it is RECOMMENDED that: 1) Petitioner's motion for immediate release on his own 5

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recognizance be DENIED; and 2) Petitioner's emergency motion for issuance of an order to show cause, immediate release, and injunctive relief be DENIED. These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after

being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served

and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will

then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file

objections within the specified time may waive the right to appeal the District Court's order. 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d

IT IS SO ORDERED. Dated: ie14hj June 28, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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