Sorrells v. United States Marshal Service
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 Shannon Sorrells; referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 1/23/2016. 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-01725 AWI-MJS (HC)
SHANNON SORRELLS,
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FINDINGS
AND
RECOMMENDATION
REGARDING PETITION FOR WRIT OF
Petitioner,
HABEAS CORPUS
v.
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UNITED STATES MARSHAL
SERVICE,
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Respondent.
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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.
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I.
BACKGROUND
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On November 16, 2015, Petitioner filed the instant petition for writ of habeas
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corpus. Petitioner is not in custody as the result of a state or federal court criminal
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judgment. Rather, Petitioner is a federal pretrial detainee, awaiting sentencing in a
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pending criminal action in this district for theft of governmental property and theft of mail.
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(ECF No. 1 at 2-3.) In Petitioner's pending criminal case, United States v. Sorrells, 14-cr-
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00140-LJO-BAM, a three day trial was held on October 20, 2015. See United States v.
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Sorrells, 14-cr-00140-LJO-BAM at ECF Nos. 74, 79, 80. At the conclusion of the trial, a
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jury found Petitioner guilty of five counts of bank fraud, a count of possession of stolen
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mail, and a count of aggravated identity theft. Id. at ECF Nos. 82-83. Petitioner is
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scheduled for sentencing on March 7, 2016. Id. at ECF No. 110.
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In the present petition, Petitioner claims he has been deprived his right to due
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process based on his lack of access to the correctional facility’s law library. (Pet., ECF
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No. 1.)
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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). In the instant petition, Petitioner complains about his lack of access to the law
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library. First, the Court notes that Petitioner is represented by legal counsel in his
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underlying criminal action. Based on his representation, it raises the question as to why
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he would need to undertake legal research, rather than consult with counsel with regard
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to any legal issues that may arise. Regardless, the Court should abstain from exercising
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jurisdiction to the extent that Petitioner’s claims can be resolved in the underlying
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criminal action.
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Further, it appears that Petitioner’s claims are not properly cognizable by way of a
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habeas corpus petition. A habeas corpus petition is the correct method for a prisoner to
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challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574
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(9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory
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Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
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In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method
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for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500
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U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory
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Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
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Petitioner’s claim does not implicate the fact or duration of his confinement.
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Petitioner seeks relief for the conditions of his confinement. (See Pet.) Petitioner desires
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access to the law library. (Id.) Petitioner does not challenge any of the actions or findings
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that have occurred in his pending criminal trial.
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Petitioner’s claims are not cognizable grounds for federal habeas corpus relief
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and must be dismissed. Should Petitioner wish to pursue his claims, he must do so by
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way of a civil rights complaint. The Court expresses no opinion as to the merits of such a
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civil rights complaint.
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As it does not appear possible that the deficiencies identified herein can be cured
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by amending the complaint, Petitioner is not entitled to leave to amend prior to dismissal
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of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en
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banc).
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In an appropriate case a habeas petition may be construed as a Section 1983
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complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418
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(1971). Although the Court may construe a habeas petition as a civil rights action, it is
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not required to do so. Since the time when the Wilwording case was decided there have
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been significant changes in the law. For instance, the filing fee for a habeas petition is
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five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For
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civil rights cases, however, the fee is now $400 and under the Prisoner Litigation Reform
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Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of
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deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A
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prisoner who might be willing to file a habeas petition for which he or she would not have
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to pay a filing fee might feel otherwise about a civil rights complaint for which the $400
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fee would be deducted from income to his or her account. Also, a civil rights complaint
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which is dismissed as malicious, frivolous, or for failure to state a claim would count as a
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"strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases.
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As the Court finds that Petitioner should have pursued available remedies in his
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pending federal criminal case, but did not do so, and that the petition challenges the
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conditions of his confinement, the Court recommends that Petitioner's petition for writ of
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habeas corpus be dismissed.
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///
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III.
RECOMMENDATION
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Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ
of habeas corpus be DISMISSED.
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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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