Hermosillo v. Federal Bureau of Prisons, et al

Filing 5

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/26/2012 ORDERING that petitioner's 4 request to proceed IFP is GRANTED; and the Clerk to randomly assign this case to a US District Judge; and RECOMMENDING the petition be dismissed without leave to amend; and the Clerk be directed to close the case. Assigned and Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOAQUIN ARIAS HERMOSILLO,
Petitioner,

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No. 2:12-cv-1036 EFB P

vs.
FEDERAL BUREAU OF PRISONS,
et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

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Respondents.
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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28

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U.S.C. § 2241. Petitioner seeks leave to proceed in forma pauperis. He makes the required

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showing. Therefore, the request is granted. See 28 U.S.C. § 1915(a).

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Currently pending before the court is petitioner’s application for a writ of habeas corpus.

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For the reasons explained below, the court finds that it must be dismissed without leave to

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amend. See Rules 1(b), 4, Rules Governing § 2254 Cases.

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A district court must entertain a habeas petition “in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in violation of

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the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A judge

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entertaining a habeas petition “shall forthwith award the writ or issue an order directing the
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respondent to show cause why the writ should not be granted, unless it appears from the

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application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. The

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petition must be dismissed if on initial review the court finds that “it plainly appears from the

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petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

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Rule 4, Rules Governing § 2254 Cases. An application for federal habeas relief must specify all

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grounds for relief, state facts supporting each ground and state the relief requested. Rule 2,

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Rules Governing § 2254 Cases. While under Ninth Circuit precedent, this court must liberally

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construe the allegations of a prisoner proceeding without counsel, see Roy v. Lampert, 465 F.3d

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964, 970 (9th Cir. 2006), the court cannot grant relief based on conclusory allegations not

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supported by any specific facts, Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v.

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Borg, 24 F.3d 20, 26 (9th Cir. 1994).

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Petitioner argues that he is being illegally detained because of an alleged defect in the

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1948 passage of H.R. 3190, by which Congress enacted 18 U.S.C. § 3231.1 According to

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petitioner, “[t]he non-existence of 18 U.S.C. § 3231 means that federal courts do not possess

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general criminal jurisdiction over ANY federal criminal statute.” Dckt. No. 1 at 8. Based on

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this allegation, petitioner seeks to void his criminal judgment under 28 U.S.C. § 2241 and Rule

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60(b)(4) of the Federal Rules of Civil Procedure.2 3 The United States Court of Appeals for the

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Ninth Circuit has not specifically addressed the constitutionality of 18 U.S.C. § 3231. However,

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18 U.S.C. § 3231 provides that “[t]he district courts of the United States shall have
original jurisdiction, exclusive of the court of the States, of all offenses against the laws of the
United States.”
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Contrary to petitioner’s contention, Rule 60 does not does not provide a basis for
collaterally challenging his criminal conviction. United States v. Mosavi, 138 F.3d 1365, 1366
(11th Cir. 1998) (“Rule 60(b) simply does not provide for relief from judgment in a criminal case
. . . .”).
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Petitioner also seeks to bring a class-action pursuant to Rule 23 of the Federal Rules of
Civil Procedure to void the judgments of other similarly situated prisoners. Dckt. No. 1 at 6.
The undersigned declines to address whether petitioner may properly bring this action as a classaction because, as explained herein, the petition must be dismissed.
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every court to address petitioner’s argument has rejected it. See Wolford v. United States, 362

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Fed. Appx. 231, 232 (3d. Cir. 2010) (unpublished) (“Section 3231 was properly enacted and is

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binding.”); United States v. Collins 510 F.3d 697, 698 (7th Cir. 2007) (rejecting argument that

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Title 18 was not properly enacted “because of supposed irregularities in its enactment” and

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discussing a separate appeal in which the court found the same argument to be “unbelievably

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frivolous.”); United Stats v. Cunningham, Criminal No. DKC 08-00215, 2009 WL 3418589 (D.

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Md. Oct. 20, 2009) (citing numerous cases where courts have rejected the argument that 18

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U.S.C. § 3231 is invalid).

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As petitioner’s sole claim is completely without merit, the petition must be dismissed
without leave to amend. See Rule 4, Rules Governing § 2254 Proceedings.

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Accordingly, it is hereby ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis is granted; and

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2. The Clerk randomly assign this case to a United States District Judge.

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Further, it is hereby RECOMMENDED that:

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1. The petition be dismissed without leave to amend; and

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2. The Clerk be directed to close the case.

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These findings and recommendations are 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)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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In his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

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enters a final order adverse to the applicant).

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Dated: October 26, 2012.

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