Mehmood v. Garcia et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED; re 1 Petition for Writ of Habeas Corpus filed by Yasir Mehmood and Further Ordered to assign a District Court Judge to the instant matter; new case number: 1:15-cv-1585 DAD MJS (HC); referred to Judge Drozd, signed by Magistrate Judge Michael J. Seng on 01/23/2016. Objections to F&R due by 2/29/2016 (Martin-Gill, S)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Case No. 1:15-cv-01585 MJS (HC)
YASIR MEHMOOD,
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FINDINGS
AND
RECOMMENDATION
REGARDING PETITION FOR WRIT OF
Petitioner,
HABEAS CORPUS
v.
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ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER
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RYAN GARCIA, et al.,
Respondents.
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Petitioner is a federal pretrial detainee proceeding pro se with the instant petition
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for habeas corpus pursuant to 28 U.S.C. § 2241.
I.
BACKGROUND
On October 16, 2015, Petitioner filed the instant petition for writ of habeas corpus.
Petitioner is not in custody as the result of a state or federal court criminal judgment.
Petitioner is a federal pretrial detainee and currently subject to prosecution on criminal
charges in the Sacramento Division of the Eastern District of California in United States
v. Mehmood, Case No. 2:12—cr—00154-JAM. Trial in the underlying criminal matter is
currently set for July 11, 2016. Id. at ECF No. 403. On March 1, 2013, a pretrial services
violation petition was filed and a warrant was issued for Petitioner's arrest. (See Pet.)
Petitioner alleges that the arrest warrant was illegally issued because the pretrial
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services violation petition was not accompanied by an affidavit, as required by the Fourth
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Amendment, and therefore did not establish probable cause. (Id.)
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I.
SCREENING THE PETITION
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Because the petition was filed after April 24, 1996, the effective date of the
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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA applies to the
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petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
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1499 (9th Cir. 1997).
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The Rules Governing Section 2254 Cases in the United States District Courts
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(Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28
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U.S.C. § 2241. Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a
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preliminary review of each petition for writ of habeas corpus. The Court must summarily
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dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that
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the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v.
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Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490
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(9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief
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available to the Petitioner; 2) state the facts supporting each ground; and 3) state the
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relief requested. Notice pleading is not sufficient; rather, the petition must state facts that
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point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976
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Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S.
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63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably
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incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.
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Further, the Court may dismiss a petition for writ of habeas corpus either on its
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own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or
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after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule
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8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
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III.
DISCUSSION
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Pursuant to 28 U.S.C. § 2241, the courts have jurisdiction to consider a habeas
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petition brought by a federal pretrial detainee. Although Section 2241 establishes
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jurisdiction in the federal courts to consider pretrial habeas petitions, the courts should
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abstain from the exercise of that jurisdiction if the issues raised in the petition may be
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resolved either by trial on the merits or other procedures available to the petitioner in the
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pending criminal case. See, Fay v. Noia, 372 U.S. 391, 417-20, 83 S. Ct. 822, 9 L. Ed.
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2d 837 (1963); Jones v. Perkins, 245 U.S. 390, 391-92, 38 S. Ct. 166, 62 L. Ed. 358
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(1918); Riggins v. United States, 199 U.S. 547, 550-51, 26 S. Ct. 147, 50 L. Ed. 303
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(1905).
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A pretrial detention ruling can be challenged in the context of the criminal case,
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and therefore is not appropriately challenged in a separate § 2241 proceeding. See
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Fassler v. United States, 858 F.2d 1016, 1018-1019 (5th Cir. 1988) (per curiam)
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(criticizing habeas petitioner's decision to challenge constitutionality of pretrial detention
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order in habeas rather than through an appeal brought pursuant to 18 U.S.C. § 3145, but
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declining to find § 3145 offered exclusive remedy); United States v. Pipito, 861 F.2d
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1006, 1009 (7th Cir. 1987) (holding that it was not error for the district court to refuse to
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consider habeas petition because petitioner should have followed procedures in 18
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U.S.C. § 3145); Whitmer v. Levi, 276 F. App'x 217, 219 (3rd Cir. 2008) (per curiam)
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(holding that petitioner challenging his pretrial detention in habeas did not seek an
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appropriate remedy because adequate remedies were available in his criminal case).
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Petitioner's criminal case is ongoing, and any challenges to his pretrial detention
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should be pursued in the criminal case. Accordingly, his petition should be summarily
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dismissed.
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The petition should also be dismissed because Petitioner fails to state a claim for
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relief. The Fourth Amendment to the United States Constitution states that "no Warrants
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shall issue, but upon probable cause, supported by Oath or affirmation." An unsworn
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declaration made under penalty of perjury has the same force and effect as a "sworn
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declaration, verification, certificate, statement, oath, or affidavit." 28 U.S.C. § 1746. An
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unsworn declaration that complies with 28 U.S.C. § 1746 satisfies the requirements of
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the Fourth Amendment because "signing a statement under penalty of perjury satisfies
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the standard for an oath or affirmation." United States v. Bueno-Vargas, 383 F.3d 1104,
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1110 (9th Cir. 2004) (finding that an unsworn probable cause statement that was signed
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under penalty of perjury and faxed to the magistrate judge satisfied Fourth Amendment's
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oath and affirmation requirement). Petitioner attaches a copy of the pretrial services
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violation petition which was signed under penalty of perjury. ECF No. 1 at 30-32. The
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oath or affirmation requirement of the Fourth Amendment was therefore satisfied and
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petitioner is not entitled to relief.
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For these reasons set forth above, the petition should be summarily dismissed.
III.
RECOMMENDATION
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Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ
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of habeas corpus be DISMISSED. Further, the Clerk of Court is ORDERED to assign a
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district court judge to the instant matter.
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These Findings and Recommendations are submitted to the assigned United
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States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B)
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and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern
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District of California. Within thirty (30) days after being served with a copy, Petitioner
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may file written objections with the Court. Such a document should be captioned
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"Objections to Magistrate Judge's Findings and Recommendations. The Court will then
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review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is
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advised that failure to file objections within the specified time may waive the right
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to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
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2014).
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IT IS SO ORDERED.
Dated:
January 23, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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