Mellone v. Badcock

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/3/13 ORDERING that a district judge be assigned to this action; it is RECOMMENDED that the petition be summarily dismissed, pursuant to Habeas Rule 4, without prejudice. Randomly assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 28 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY MELLONE,

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No. 2:13-cv-1037 AC P

Petitioner,
v.

ORDER and

MIKE BADCOCK,

FINDINGS AND RECOMMENDATIONS

Respondent.

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Petitioner is a federal prisoner who proceeds pro se on this application for relief under 28

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U.S.C. § 2241. Petitioner has not, however, filed an in forma pauperis affidavit or paid the

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required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a).

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The court has undertaken a preliminary review of the petition, pursuant to Rule 4 of the

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Rules Governing Section 2254 Cases (“Habeas Rules”) (made applicable to this proceeding by

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Habeas Rule 1(a)). The court finds that it lacks subject matter jurisdiction to review the petition

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because petitioner, among other things, admits that he has failed to exhaust his available

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remedies, and because certain claims are barred under 28 U.S.C. § 2244. Accordingly, the

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undersigned will recommend that the petition be summarily dismissed.

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Petitioner claims that he is currently at the Federal Correctional Institution at Herlong,

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serving a 30 month sentence imposed in February 2010 by the United States District Court in

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Miami. See Petition, ECF No. 1 at 1. Petitioner claims that, as part of his negotiated plea
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agreement, he was to serve six months in a halfway house. Id. Petitioner does not provide the

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court with a copy of the plea agreement. He appears to claim that he has not been placed in a

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halfway house, or that he has been denied consideration “for placement into residential re-entry,

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home detention program or early release for the six-months of his thirty month sentence.” Id. at

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2; see also id. at 6, 10.

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Petitioner also appears to allege that the Bureau of Prisons (“BOP”) has incorrectly

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calculated his good-time credits, or that they have incorrectly withheld credits from him, or that

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petitioner’s good-time credits were forfeited wrongfully after a disciplinary infraction. Id. at 4.

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Petitioner also advises the court that he previously filed a motion to vacate his sentence

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under 28 U.S.C. § 2255, in the Southern District of Florida. Id. The prior petition was apparently

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denied after counsel was appointed for petitioner, though petitioner does not say when. Id.

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Petitioner claims that his motions to reopen, and for a certificate of appealability, have been

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denied, but again does not say when. Id.

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Successive Claims are Barred under 28 U.S.C. § 2244

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Petitioner claims that he filed a prior motion to vacate his conviction and sentence in his

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sentencing court. To the extent petitioner seeks relief from this court of the sentencing court’s

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decision on his § 2255 motion, this court should decline to exercise jurisdiction over the

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application. See, e.g., Treadway v. Academy of Motion Picture Arts and Sciences, 783 F.2d

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1418, 1422 (9th Cir. 1986). Moreover, all claims that were raised, or that could have been raised,

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before the sentencing court in the prior petition, should be barred as successive. See 28 U.S.C. §

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2244(b).

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Accordingly, the undersigned recommends that Grounds One, Four, and Eight be
dismissed without prejudice to renewal after petitioner complies with 28 U.S.C. § 2244(b)(3).

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Petitioner’s Remaining Claims are Not Exhausted, and are Vague

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Section 2241 does not specifically require petitioners to exhaust administrative remedies

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before filing petitions for writ of habeas corpus; however, the Court of Appeals for the Ninth

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Circuit, in which this district is located, requires “as a prudential matter, that habeas petitioners

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exhaust available judicial and administrative remedies before seeking relief under § 2241.”
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Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001).
Petitioner admits that he has failed to exhaust his available administrative remedies, and

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claims that because his time is short, he should be excused from doing so. He also claims that he

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has been advised not to file further paperwork with the BOP. Petition, ECF No. 1 at 1 (“due to

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facts, based on the ‘time’ petition has remaining is short, and because of being advised not to file

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any more (BOP) forms or administrative requests, (Nature to be fully disclosed at latter [sic] time

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in court!)”); see also id. at 7.

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The difficulty with this petition is that petitioner fails to advise the court of the relevant

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details surrounding the denial of his housing request. For example, the court cannot determine

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from petitioner’s conclusory statements how petitioner requested a change in housing, when the

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request was denied (and by whom), and the reasons for the denial. Petitioner also fails to include

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any details about his good time credit calculations, or the disciplinary which he argues resulted in

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loss of credits.

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The court in this case is unable to determine the reasons for petitioner’s allegedly

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unconstitutional detention. Even if petitioner’s claims were exhausted, the court would be

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constrained to dismiss them as vague. Accordingly, the undersigned recommends that Grounds

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Two, Three, Five, and Six be dismissed without prejudice to renewal after petitioner has

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exhausted his available administrative remedies.

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Petitioner’s “Judicial Notice” Claim

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Ground Seven, entitled “Judicial Notice,” generally reads that the constitutional rights and

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welfare of prisoners at Herlong are being violated. Petitioner fails to specify if he is among the

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prisoners whose rights are being violated.

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Petitioner is advised that, if he wishes to pursue a claim that his constitutional rights have

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been violated by a federal employee, he must do so in a civil rights complaint filed pursuant to

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Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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Petitioner does not have standing to raise these claims because he has alleged no injury to

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his own rights or person. See Valley Forge Christian College v. Americans United for Separation

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of Church and State, 454 U.S. 464, 472 (1982) (party who invokes court’s authority must “show
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that he personally has suffered some actual or threatened injury as a result of the putatively illegal

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conduct of the defendant...”); Johns v. County of San Diego, 114 F.32d 874, 876 (9th Cir. 1997)

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(“[C]onstitutional claims are personal and cannot be asserted vicariously.”), citing U.S. v.

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Mitchell, 915 F.2d 521, 526 n.8 (in asserting outrageous conduct of government as defense,

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defendant has no standing “to raise the rights of others whose rights may have been violated....).

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In addition, petitioner may not bring a civil rights action on behalf of other inmates. As a

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non-attorney, plaintiff may appear pro se on his own behalf, but that privilege is personal to him.

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C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir.1987).

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The undersigned recommends that Ground Seven be dismissed without prejudice to the
filing of an appropriate civil complaint.

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Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this action,
and
IT IS HEREBY RECOMMENDED that the petition be summarily dismissed, pursuant to
Habeas Rule 4, without prejudice, for the reasons outlined above.

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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 twenty-eight

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days 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.” Any reply to the objections

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shall be served and filed within twenty-eight days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 3, 2013
______________________________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:rb/mell1037.114

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