Mehmood v. U.S. Marshals Service, et al

Filing 16

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/3/2015 GRANTING petitioner's 12 motion to proceed IFP; and DENYING petitioner's 15 motion for bail. IT IS RECOMMENDED that petitioner's 1 application for a writ of habeas corpus be summarily dismissed. Referred to Judge Morrison C. England, Jr.; Objections to the findings and recommendations due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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YASIR MEHMOOD,

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No. 2:15-cv-0019 MCE AC P

Petitioner,
v.

ORDER AND FINDINGS &
RECOMMENDATIONS

U.S. MARSHALS SERVICE, et al.,
Respondents.

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Petitioner, a federal pretrial detainee proceeding pro se, has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 together with a request to proceed in forma pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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the costs of suit. ECF No. 12. Accordingly, the request for leave to proceed in forma pauperis is

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granted. See 28 U.S.C. § 1915(a).

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The Rules Governing Section 2254 Cases in the United States District Courts (Habeas

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Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas

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Rule 1(b). Rule 4 of the Habeas Rules requires the court to summarily dismiss a habeas petition

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“[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled

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to relief in the district court.” “[A] petition for habeas corpus should not be dismissed without

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leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave

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granted.” Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
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Petitioner alleges that he is a federal pretrial detainee and currently subject to prosecution

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on criminal charges in the Sacramento Division of the Eastern District of California in United

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States v. Mehmood, Case No. 2:12–cr–00154-JAM. ECF No. 1 at 2. On March 1, 2013, a

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pretrial services violation petition was filed and a warrant was issued for petitioner’s arrest. Id. at

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6. Petitioner alleges that the arrest warrant was illegally issued because the pretrial services

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violation petition was not accompanied by an affidavit, as required by the Fourth Amendment,

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and therefore did not establish probable cause. Id. at 6-7.

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Pursuant to 28 U.S.C. § 2241, the courts have jurisdiction to consider a habeas petition
brought by a federal pretrial detainee. However, “[i]t is well settled that in the absence of

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exceptional circumstances in criminal cases the regular judicial procedure should be followed and

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habeas corpus should not be granted in advance of a trial.” Jones v. Perkins, 245 U.S. 390, 391-

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92 (1918) (citing Riggins v. United States, 199 U.S. 547 (1905); Glasgow Moyer, 225 U.S. 420

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(1912); Johnson v. Hoy, 227 U.S. 245 (1913)); see also Stack v. Boyle, 342 U.S. 1, 6-7 (1951)

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(district court should withhold relief in collateral habeas action where adequate remedy is

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available in criminal proceeding and has not been exhausted). A pretrial detention ruling can be

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challenged in the context of the criminal case, and therefore is not appropriately challenged in a

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separate § 2241 proceeding. See Fassler v. United States, 858 F.2d 1016, 1018-1019 (5th Cir.

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1988) (per curiam) (criticizing habeas petitioner’s decision to challenge constitutionality of

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pretrial detention order in habeas rather than through an appeal brought pursuant to 18 U.S.C. §

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3145, but 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 consider

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habeas petition because petitioner should have followed procedures in 18 U.S.C. § 3145);

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Whitmer v. Levi, 276 F. App’x 217, 219 (3rd Cir. 2008) (per curiam) (holding that petitioner

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challenging his pretrial detention in habeas did not seek an appropriate remedy because adequate

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remedies were available in his criminal case).

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Petitioner’s criminal case is ongoing, and any challenges to his pretrial detention should

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be pursued in the criminal case. Accordingly, his petition should be summarily dismissed. The

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same holds true for petitioner’s motion for bail (ECF No. 15) which will be denied.
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The petition should also be dismissed because petitioner fails to state a claim for relief.

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The Fourth Amendment to the United States Constitution states that “no Warrants shall issue, but

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upon probable cause, supported by Oath or affirmation.” An unsworn declaration made under

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penalty of perjury has the same force and effect as a “sworn declaration, verification, certificate,

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statement, oath, or affidavit.” 28 U.S.C. § 1746. An unsworn declaration that complies with 28

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U.S.C. § 1746 satisfies the requirements of the Fourth Amendment because “signing a statement

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under penalty of perjury satisfies the standard for an oath or affirmation.” United States v.

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Bueno-Vargas, 383 F.3d 1104, 1110 (9th Cir. 2004) (finding that an unsworn probable cause

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statement that was signed under penalty of perjury and faxed to the magistrate judge satisfied

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Fourth Amendment’s oath and affirmation requirement). Petitioner attaches a copy of the pretrial

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services violation petition which was signed under penalty of perjury. ECF No. 1 at 9. The oath

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or affirmation requirement of the Fourth Amendment was therefore satisfied and petitioner is not

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entitled to relief.

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For these reasons set forth above, the petition should be summarily dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis (ECF No. 12) is granted.

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2. Petitioner’s motion for bail (ECF No. 15) is denied.

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IT IS FURTHER RECOMMENDED that petitioner’s application for a writ of habeas

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corpus (ECF No. 1) be summarily dismissed.

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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-one 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.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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

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

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DATED: November 3, 2015

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