Brown v. Johnson

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 5/17/2016 recommending that 1 Petition for Writ of Habeas Corpus be dismissed for lack of jurisdiction. Referred to Judge Anthony W. Ishii; Objections to F&R due by 6/20/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH ANTHONY BROWN,

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Petitioner,

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Case No. 1:15-cv-01730-AWI-SKO HC
FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PETITION FOR
HABEAS CORPUS FOR LACK OF
JURISDICTION

v.
B.J. JOHNSON,

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Respondent.

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On November 16, 2015, Petitioner, a federal prisoner proceeding pro se, filed a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks correction of an alleged

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clerical error in the transcripts of a 2008 criminal trial in this district (United States v. Brown (No.

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1:08-cr-00347-DAD)), contending that the correction will enable him to seek commitment to a
mental hospital outside of federal prison. Because his claims are outside of the Court’s habeas

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jurisdiction, the undersigned recommends that the Court dismiss the petition for lack of subject
matter jurisdiction.
I.

Screening Requirement
Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary

review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly
appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules

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Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A

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petition for habeas corpus should not be dismissed without leave to amend unless it appears that no

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tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d

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13, 14 (9th Cir. 1971).

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II.

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Failure to State a Federal Habeas Claim
The scope of habeas corpus is prescribed by statute. Section 2241(c) provides that habeas

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corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." The
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Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon
the legality of that custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
Here, Petitioner fails to state a cognizable federal claim. He does not allege a violation of
the Constitution or federal law, nor does he argue that he is in custody in violation of the
Constitution or federal law. He alleges only that a clerical error was made in the transcript of his
2008 criminal trial, which ended in a mistrial, and that correction of the error would enable him to

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secure placement in a mental hospital, not federal prison. These are not cognizable grounds for a
petition for habeas corpus pursuant to 28 U.S.C. § 2241.
The proper procedure for correcting a transcript is by motion in the Court in which the

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underlying legal proceeding occurred. “The Court may correct a clerical mistake or mistake

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arising from oversight or omission whenever one is found in a judgment, order, or other part of a

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record. The court may do so on motion or on its own, with or without notice.” F.R.Civ.P. 60(a).

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Petitioner has already moved the Court for correction of the transcript. See United States v.
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Brown, Doc. 146 (E.D.Cal. Feb. 22, 2016) (No. 1:08-cr-00347-DAD-1). The Court found no

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factual basis for the requested modification of the transcript and denied the motion. See United

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States v. Brown, Doc. 147 (E.D.Cal. Mar. 1, 2016) (No. 1:08-cr-00347-DAD-1). Petitioner’s

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recourse lies in an appeal of the denial of the motion, not in a petition for writ of habeas corpus.

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III.

Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district

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court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell,

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537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate

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of appealability is 28 U.S.C. § 2253, which provides:

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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court of
appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person's detention pending removal proceedings.

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(c)

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(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from—

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(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.

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(3) The certificate of appealability under paragraph (1) shall indicate which
specific issues or issues satisfy the showing required by paragraph (2).

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I

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If a court denies a habeas petition, the court may only issue a certificate of appealability "if
jurists of reason could disagree with the district court's resolution of his constitutional claims or that

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jurists could conclude the issues presented are adequate to deserve encouragement to proceed
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further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the

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petitioner is not required to prove the merits of his case, he must demonstrate "something more than

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the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at

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338.

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Here, the Court finds that reasonable jurists would not find the Court's determination that it

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lacks jurisdiction to consider the petition for writ of habeas corpus to be debatable or wrong.

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Petitioner has not made the required substantial showing of the denial of a constitutional right.

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Accordingly, the Court declines to issue a certificate of appealability.

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IV.

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Conclusion and Recommendation
The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus

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for lack of subject matter jurisdiction and decline to issue a certificate of appealability.
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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days

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after being served with these Findings and Recommendations, Petitioner may file written objections

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with the Court. The document should be captioned AObjections to Magistrate Judge=s Findings and

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Recommendations.@ Petitioner is advised that failure to file objections within the specified time
may constitute waiver of the right to appeal the District Court's order. Wilkerson v. Wheeler, 772

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F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 17, 2016

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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