Hammer v. Federal Public Defender Organization of the Eastern District of California et al

Filing 28

ORDER Granting Defendant's 13 Motion to Dismiss. Signed by Judge Barry Ted Moskowitz on 8/2/2017. (mxn)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:16-CV-02192-BTM-NLS BRIAN HAMMER, Plaintiffs, 12 13 v. 14 FEDERAL PUBLIC DEFENDER ORGANIZATION OF THE EASTERN DISTRICT OF CALIFORNIA, DOES 1-50, and UNITED STATES OF AMERICA, 15 16 17 18 19 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Defendants. On August 30, 2016, Plaintiff Brian Hammer filed a complaint (“Complaint”) 20 against Defendants Federal Public Defenders Organization of the Eastern District 21 of California, Does 1-50 (“Federal Public Defenders”) and the United States of 22 America (“United States”). Defendant Federal Public Defenders moved to 23 dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) 24 (“Rule 12(b)(6)”). (ECF No. 13.) For the reasons discussed below, Defendant 25 Federal Public Defenders’ motion is GRANTED. 26 27 I. BACKGROUND 28 On or about March 31, 2003, Plaintiff was found guilty of mail and wire 1 3:16-CV-02192-BTM-NLS 1 fraud in the Eastern District of California, was subsequently sentenced to 36 2 months in prison, and ordered to pay restitution in the amount of $35,000. (ECF 3 Nos. 1-2, Compl. ¶ 16.) However, Plaintiff contends that he should not have 4 been required to pay any restitution because Plaintiff’s father had previously 5 settled with the victims in state court in May of 2002. Id. at ¶ 17. Plaintiff 6 believes that the previous settlement was in “complete recompense” for his 7 victim’s losses and that the “related settlement offsets were incorrectly entered in 8 the restitution sentencing table.” (ECF No. 19, Reply in Response to Motion at 9 8.) Despite Plaintiff’s belief, in August 2014 the U.S. Attorney’s Office in the 10 Eastern District of California sent Plaintiff a demand notice for $37,380. (Compl. 11 ¶ 18). Plaintiff attempted three separate times to correct what he believed to be 12 a “restitution error,” but was unable to do so. Id. at ¶ 20. Plaintiff then contacted 13 The Federal Public Defender’s office seeking assistance in resolving the matter. 14 In February 2015, Magistrate Judge Carolyn K. Delaney appointed 15 Defendant Federal Public Defenders to represent Plaintiff pursuant to 18 U.S.C. 16 §3006A, and did so under Plaintiff’s original case number. (Compl. at Ex. 1.) 17 However, the Federal Public Defenders withdrew from representation four 18 months later, claiming it could not “provide [Plaintiff] the assistance he desires.” 19 (Compl. at Ex. 2.) Plaintiff then initiated the present action against Defendants 20 Federal Public Defender and the United States. 21 The core of Plaintiff’s argument is Defendant Federal Public Defender 22 negligently and incompetently represented Plaintiff in correcting the 2003 23 restitution order. (Compl. ¶¶ 22, 24.) Plaintiff contends that the Federal Public 24 Defender “knowingly and willfully…failed to acknowledge their mistakes” made 25 during the course of representation, and their actions are “in violation of their 26 express and implied duties” pursuant to the legal services agreement and public 27 policy. (Compl. ¶ 24.) 28 Both Defendants Federal Public Defender and the United States brought 2 3:16-CV-02192-BTM-NLS 1 separate motions to dismiss Plaintiff’s Complaint. The Court now considers 2 Defendant Federal Public Defender’s motion to dismiss. 3 4 5 II. DISCUSSION A. Standards: 6 1. FRCP 12(b)(6) – Failure to State a Claim: 7 Rule 12(b)(6) provides a party may move to dismiss a complaint that “fail[s] 8 to state a claim upon which relief can be granted.” Fed.R.Civ.P.12(b)(6). While 9 Federal Rule of Civil Procedure 8(a) may only require a “short and plain 10 statement of the claim showing that the pleader is entitled to relief,” to survive a 11 Rule 12(b)(6) challenge a complaint must state a cognizable legal theory and 12 “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 14 550 U.S. 544, 555 (2007)). Indeed, the complaint “must contain sufficient factual 15 matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” 16 which would allow the “court to draw the reasonable inference that the defendant 17 is liable for the misconduct alleged.” Id. This claim must assert “more than a 18 sheer possibility that a defendant has acted unlawfully.” Id. 19 In considering a Rule 12(b)(6) motion, the Court must look at the “complaint 20 in its entirety, as well as other sources courts ordinarily examine when ruling on 21 Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the 22 complaint by reference, and matters of which a court may take judicial notice.” 23 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). While courts 24 generally do not consider material beyond the pleadings in ruling on a 12(b)(6) 25 motion, “[c]ertain written instruments attached to the pleadings may be 26 considered,” as well as non-attached documents which are incorporated by 27 reference “if the plaintiff refers extensively to the document or the document 28 forms the basis of the plaintiff’s claim.” Friedman v. AARP, Inc., 855 F.3d 1047, 3 3:16-CV-02192-BTM-NLS 1 1051 (9th Cir. 2017) (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2 2003)). The Court may also take judicial notice of “matters of public record,” 3 provided the facts noticed are not reasonably disputed. Intri-Plex Techs., Inc. v. 4 Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). 5 2. Sovereign Immunity: 6 The concept of sovereign immunity, which the Supreme Court has 7 characterized as an “axiom of our jurisprudence,” is the idea that the United 8 States cannot be sued unless it has specifically consented. Price v. United 9 States, 174 U.S. 373, 375-76 (1899). The presence of such consent is a 10 “prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206 (1983) (see 11 also United States v. Sherwood, 312 U.S. 584, 586 (1941).) For the United 12 States to consent to suit, a waiver of sovereign immunity must be unequivocally 13 expressed by Congress, and any conditions Congress attaches to a waiver of 14 sovereign immunity “must be strictly observed, and exceptions thereto are not to 15 be lightly implied.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 16 U.S. 273, 287 (1983). Accordingly, one must examine the terms and extent of 17 the consent itself to “define [the] court’s jurisdiction to entertain the suit.” 18 Mitchell, 463 U.S. at 538. 19 3. Federal Tort Claims Act: 20 The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) and 20 U.S.C. 21 §§ 2671-2680, was first adopted by Congress in 1946. The purpose of the FTCA 22 is to allow recovery for certain tort claimants who are the victims of governmental 23 negligence where such claims would normally be barred by sovereign immunity. 24 E.g., Indian Towing Co. v. United States, 350 U.S. 61, 68-69 (1955); Lehner v. 25 United States, 685 F.2d 1187, 1189 (9th Cir. 1982). The FTCA permits the 26 exclusive remedy of money damages for suits involving the tortuous conduct, 27 wrongful acts, or omissions of the employees or agents of the United States. 28 28 U.S.C. §2679(a) and (b). 4 3:16-CV-02192-BTM-NLS 1 The FTCA’s waiver of sovereign immunity in tort actions is “subject to 2 certain exceptions.” S.H. by Holt v. United States, 2017 WL 1314939, at 3 (9th 3 Cir. Apr. 10, 2017). However, the FTCA, as a limited waiver of sovereign 4 immunity, “must be strictly construed in favor of the United States.” Brady v. 5 United States, 211 F.3d 499, 502 (9th Cir. 2000) (see also Dep’t of the Army v. 6 Blue Fox, Inc., 525 U.S. 255, 261 (1999)). The Supreme Court has cautioned 7 against finding implied waivers of sovereign immunity and stated that such 8 waivers must not be enlarged “beyond what the language requires.” 9 Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686 (1983). Here, it is the 10 Plaintiff who must bear the burden of showing such a waiver is “’unequivocally 11 expressed’ in the statutory text.” Hajro v. U.S. Citizenship & Immigration Servs., 12 811 F.3d 1086, 1101 (9th Cir. 2016) (quoting Library of Congress v. Shaw, 478 13 U.S. 310, 318 (1986)). Plaintiff must show that Congress consented to subject 14 the United States government to suit pursuant to the FTCA under circumstances 15 such as exist in the present case, and thus establish that this court has subject 16 matter jurisdiction to hear the present case. 17 B. Exception for Federal Public Defender Under FTCA’s Definition of 18 “Employee of the Government”: 19 With respect to the Federal Public Defender, 28 U.S.C. §2671 explains that 20 an “employee of the government” is defined as “…(2) any officer or employee of 21 a Federal public defender organization, except when such officer or employee 22 performs professional services in the course of providing representation under 23 section 3006A of title 18.” As employees of a “Federal public defender 24 organization,” Defendant Federal Public Defender falls within the definition of 25 “employee of the government” unless the exception applies. This exception was 26 specifically added to the definition by amendment in 2000. See Federal Courts 27 Improvement Act of 2000, PL 106-518, November 13, 2000, 114 Stat. 2410. For 28 the exception to apply, the Federal Public Defender employee must have been 5 3:16-CV-02192-BTM-NLS 1 performing professional services pursuant to representation under section 2 3006A. 3 1. 4 As discussed above, the appointment of Defendant Federal Public 5 Defender as counsel to Plaintiff was made pursuant to 18 U.S.C. §3006A, as 6 evidenced by the Order Appointing Counsel dated February 17, 2015. (Compl. 7 at Ex. 1.) Additionally, the aforementioned order was issued under the same 8 case number as the Plaintiff’s preceding criminal conviction. It seems clear that 9 the U.S. District Court for the Eastern District of California assigned the Federal 10 Public Defender to represent Plaintiff under the belief that it was acting pursuant 11 to the authority of §3006A and that said representation was in connection to 12 Plaintiff’s original criminal case. 13 Appointment Made Pursuant to 18 U.S.C. §3006A: Plaintiff contends, however, that the Federal Public Defender could not 14 have been representing him under §3006A, as he was not a “financially eligible 15 ‘criminal defendant’” at the time or representation. (ECF Doc. No. 19, Plaintiff’s 16 Opposition, at 10.) While Plaintiff admits to being indigent and thus “financially 17 eligible,” he argues that at the time he received and subsequently challenged the 18 demand notice ordering him to pay restitution, he was not a criminal defendant, 19 but rather a civil one. Id., at 12. His argument is that under the Federal Debt 20 Collection Procedures Act (“FDCPA”), unpaid criminal restitution orders (a 21 “judgment on a debt”) are converted into civil judgments, as the statute provides 22 solely for “civil procedures.” 28 U.S.C. §3001(a)(1). Plaintiff’s line of reasoning 23 is as follows: if his criminal restitution order was converted into a civil judgment 24 by way of the FDCPA, then, at the time of his representation, he must have been 25 a “civil defendant” and §3006A could not have applied, thus rendering the 26 exception under §2671 inapplicable and exposing the United States to liability. 27 28 Plaintiff’s understanding of the FDCPA is incorrect. The Act does not convert a criminal restitution judgment into a civil one and subsequently 6 3:16-CV-02192-BTM-NLS 1 transform a criminal defendant into a civil defendant. The purpose of the FDCPA 2 is to “’create a comprehensive statutory framework for the collection of debts 3 owed to the United States’…including criminal fines.” United States v. Coluccio, 4 19 F.3d 1115, 1116 (6th Cir. 1994) (quoting H.R.Rep. No. 101-736, 101st Cong., 5 2d Sess. 23 (1990)). In the Coluccio case, the Government used a civil 6 procedure to recover a fine “arising from a criminal proceeding,” an act which 7 “falls squarely within the purview of the FDCPA.” Id., at 1116-7. 8 States v. Rostoff, 956 F. Supp. 38 (D. Mass. 1997), a case Plaintiff cites in 9 support of his argument, the court noted that the FDCPA provides “the In United 10 government with the express authority to enforce criminal fines by way of civil 11 proceedings,” and therefore a criminal fine is “properly subject to a lawsuit” under 12 the FDCPA. 956 F.Supp. at 44. The FDCPA does not convert a criminal 13 restitution judgment into a civil one (and certainly does not change the nature of 14 a particular defendant), but rather merely allows for the utilization of a civil 15 procedure to collect on a criminal debt. 16 Even if Plaintiff was correct as to his conversion argument, §3006A(c) 17 would still allow Defendant Federal Public Defender to represent Plaintiff in 18 “ancillary matters appropriate to the proceedings.” That is precisely what the 19 court did in Plaintiff’s case. Whether the instant matter is classified as civil or 20 criminal is “irrelevant” so long as it was “sufficiently related” to the original 21 criminal case to be considered “an ‘ancillary’ proceeding for the purposes of 18 22 U.S.C. §3006A(c).” United States v. Martinson, 809 F.2d 1364, 1370 (9th Cir. 23 1987); see United States v. Hayes, 385 F.3d 1226, 1229 (9th Cir. 2004) (holding 24 that after a criminal conviction was overturned, “wrongfully paid restitution could 25 be sought without bringing a separate Tucker Act claim,” a civil claim that was 26 considered ancillary to the original criminal case); see also Telink, Inc. v. United 27 States, 24 F.3d 42, 46 (9th Cir. 1994) (holding that a recovery of wrongly paid 28 fines would be incident to overturning a criminal conviction, and a separate civil 7 3:16-CV-02192-BTM-NLS 1 action to recover any paid fines was not necessary). In determining which 2 matters are “ancillary,” the Guide to Judiciary Policy (“Guide”) explains that 3 courts “should consider whether the matter…arose from, or [is the] same as or 4 closely related to, the facts and circumstances surrounding the principal criminal 5 charge.”1 The Guide also provides a non-exhaustive list of examples that would 6 qualify as “ancillary matters,” which includes civil matters. Given the restitution claim directly arose from the original criminal case and 7 8 it is irrelevant whether it is civil or criminal in nature, the claim is within the 9 meaning of “ancillary matters” for purposes of §3006A(c), and thus Defendant 10 Federal Public Defender was properly assigned as Plaintiff’s counsel under the 11 authority of 18 U.S.C. §3006A. 2. Defendant Is Not an “Employee of the Government” for Purposes 12 of FTCA: 13 As previously explained, 28 U.S.C. §2671 specifically exempts “employees 14 15 of a Federal public defender organization” providing “professional service” 16 pursuant to representation under §3006A. This Court has determined that 17 Defendant Federal Public Defender was undertaking representation pursuant to 18 §3006A, and thus is exempt from §2671’s definition of “employees of the 19 Government.” Plaintiff contends that the nature of the acts constituting an 20 alleged breach of Defendant Federal Public Defender’s duties to Plaintiff were 21 “outside the scope of employment.” (Plaintiff’s Opposition, at 1.) However, as 22 explained above, Defendant Federal Public Defender’s representation of Plaintiff 23 was clearly an “ancillary matter” to the original criminal case, and thus within the 24 dominion of §3006A. Therefore, Defendant Federal Public Defender’s alleged 25 26 27 28 1 Criminal Justice Act Guidelines, Guide to Judiciary Policy, Vol. 7 Defender Services, Part A, Chapter 2, §210.20.30, available at: http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-2-ss-210representation-under-cja. See also U.S. Commodity Futures Trading Comm'n, No. 03-603-KI, 2004 WL 1305887, at 3 (D. Or. Feb. 24, 2004) (further explaining that the Guide sets out a non-inclusive list in which counsel may be assigned, and that they are not required to be initially assigned during the original criminal case). 8 3:16-CV-02192-BTM-NLS 1 malpractice lies outside of the scope of the FTCA. 2 C. 3 Representation Are “Outside the Scope of Employment” Lacks Merit: Plaintiff’s Argument That Acts/Omissions Made During Notwithstanding the Court’s determination that Defendant Federal Public 4 5 Defender’s representation of Plaintiff was undertaken pursuant to §3006A, 6 Plaintiff’s argument that acts or omissions made during the representation were 7 “outside the scope of employment” lacks merit. Defendant United States 8 correctly points out in its Reply (ECF Doc. 20, at 7) that if the representation was 9 indeed “outside the scope of employment,” the alleged negligence wouldn’t have 10 occurred within the scope of employment as required for the FTCA to apply. 28 11 U.S.C. §1346(b)(1). If the FTCA is inapplicable, then the United States has not 12 waived its sovereign immunity. The Federal Public Defender Organization of the 13 Eastern District of California is a federal entity constituted under the Criminal 14 Justice Act and supervised by the Administrative Office of the United States 15 Courts. 18 U.S.C. §3006A(g). 2 While Congress has waived sovereign immunity 16 as to certain federal entities “from the times of their inception by including in the 17 enabling legislation provisions that they may sue and be sued,” Loeffler v. Frank, 18 486 U.S. 549, 554 (1988), the Federal Public Defender Organization is not one 19 such entity, as no such “sue-and-be-sued” provision applies to them. Therefore, 20 Plaintiff has not shown that sovereign immunity has been waived, and thus has 21 not carried his burden of proving this action lies within the limited jurisdiction of 22 this Court. 23 D. 24 Committed Malpractice: Plaintiff Has Not Shown Defendant Federal Public Defender Plaintiff’s suit against Defendant Federal Public Defender cannot proceed 25 26 27 28 2 See also United States District Court for the Eastern District of California General Order No. 42, and the U.S. Courts website, which states that Federal Public Defender Organizations are “federal entities, and their staffs are federal employees,” available at http://www.uscourts.gov/services-forms/defender-services. 9 3:16-CV-02192-BTM-NLS 1 under the FTCA for the reasons discussed previously, but even if it were allowed 2 to proceed, it would fail because Plaintiff has not shown that Defendant’s actions 3 in any way injured him. Plaintiff sought to correct what he believed to be an error 4 in the restitution order due to his belief that his father’s negotiated civil settlement 5 was in “complete recompense” for his victim’s losses. (ECF No. 19, at 8.) 6 However in Plaintiff’s case modification of the restitution order was not possible, 7 and Plaintiff has not shown he was actually harmed as a result of Defendant’s 8 representation. 9 1. Relief Plaintiff Sought Was Unattainable: 10 The restitution order is a final judgment, and “[u]ltimately only the court – 11 rather than the victim or the defendant – can impose or modify the defendant’s 12 sentence.” United States v. Hankins, No. 15-30345, 2017 WL 2434718, at 3 (9th 13 Cir. June 6, 2017). A restitution order is a criminal sentence, and cannot be 14 modified through private settlement, as “[p]rivate parties cannot simply agree to 15 waive the application of a criminal statute.” Id., at 3 (quoting United States v. 16 Savoie, 985 F.2d 612, 619 (1st Cir. 1993). The Ninth Circuit further explains 17 taking restitution “out of the hand of the criminal justice system and leaving it up 18 to private parities” is against public policy would create a “serious risk that 19 defendants could coerce victims into settling or that defendants and victims 20 would collude on settlements.” Id., at 4. The Mandatory Victim Restitution Act 21 (“MVRA”), which mandates restitution to victims of offenses of “fraud or deceit,” 22 states that in “no case shall the fact that a victim has received or is entitled to 23 receive compensation with respect to a loss from insurance or any other source 24 be considered in determining the amount of restitution.” 18 U.S.C. §3664. Under 25 the MVRA, “restitution is mandatory…and cannot be waived by a prior civil 26 settlement.” United States v. Edwards, 595 F.3d 1004, 1014 (9th Cir. 2010). 27 Nothing Plaintiff’s father did in his negotiated settlement with Plaintiff’s victims 28 had any bearing on whether the restitution amount owed by Plaintiff should be 10 3:16-CV-02192-BTM-NLS 1 2 reduced or otherwise vacated. The restitution order could only be modified by the court, and the “district 3 court is authorized to modify a Defendant’s sentence only in specified instances 4 where Congress has expressly granted the court jurisdiction to do so.” United 5 States v. Bedonie, 413 F.3d 1126, 1129 (10th Cir. 2005) (quoting United States 6 v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996)). The Ninth Circuit has held that 7 a “district court does not have inherent power to resentence defendants at any 8 time. It’s authority to do so must flow from either the court of appeals mandate 9 under 28 U.S.C. §2106 (1982) or from Federal Rule of Criminal Procedure 35.” 10 United States v. Lewis, 862 F.2d 748, 750 (9th Cir. 1988) (quoting United States 11 v. Minor, 846 F.2d 1184, 1187 (9th Cir. 1988)). In the present matter, there is no 12 mandate issued by the court of appeals, nor has Plaintiff shown there is a need 13 to correct his sentence as a result of “arithmetical, technical, or other clear error” 14 or reduce the sentence based on substantial assistance. Fed. R. Crim. P. 35. 15 Plaintiff contends that there were three ways the Federal Public Defender 16 Office could have modified the restitution orders (Plaintiff’s Opp’n, ECF No. 18 at 17 22-23). The first is to seek a reduction in the restitution amount pursuant to 18 18 U.S.C. §3573, but the wording of this statute shows that it only applies when the 19 Government’s “reasonable efforts to collect a fine or assessment are not likely to 20 be effective.” 18 U.S.C. §3573. This section provides that “only the government 21 [is authorized] to petition the court to stay payment of a fine.” United States v. 22 Hardy, 935 F.2d 276 (9th Cir. 1991) (emphasis added). Second, Plaintiff states 23 Defendant could have sought to modify the amount under 18 U.S.C. §3664(k). 24 However, this section operates solely to “adjust the payment schedule, or require 25 immediate payment in full” if there is a “material change in the defendant’s 26 economic circumstances that might affect the defendant’s ability to pay 27 restitution,” rather than to reduce or excuse the restitution amount. 18 U.S.C. 28 §3664(k). Even assuming Plaintiff could show a material change in his economic 11 3:16-CV-02192-BTM-NLS 1 circumstances, he would still be required to pay the entire restitution amount, 2 albeit on an adjusted pay schedule. 3 Finally, Plaintiff argues Defendant could have filed a petition for a writ of 4 coram nobis to correct or otherwise vacate the restitution order, in the hope that 5 a different result would have occurred had the petition been filed by the 6 Defendant rather than Plaintiff in pro se. Plaintiff had filed a petition for a writ of 7 coram nobis on October 6, 2015, but the court denied Hammer’s petition, stating 8 he had “not shown that the alleged miscalculation of restitution is an error of the 9 most fundamental character.” (ECF No. 14, Declaration of Michael C. Wood in 10 support of Motion to Dismiss and Request for Judicial Notice, at 95) (internal 11 quotations and citations omitted.) Plaintiff posits that “[p]erhaps the court would 12 have ruled differently had the Defendant [Federal Public Defender] filed the 13 motion, instead of Plaintiff in pro se?” (ECF No. 18 at 30.) The purpose of a writ 14 of coram nobis is to “correct errors of fact” United States v. Morgan, 346 U.S. 15 502, 507 (1954). It is a “highly unusual remedy, available only to correct grave 16 injustices,” and defendant is required to show: “(1) a more usual remedy is not 17 available; (2) valid reasons exist for not attacking the conviction earlier; (3) 18 adverse consequences exist from the conviction sufficient to satisfy the case or 19 controversy requirement…; and (4) the error is of the most fundamental 20 character.” United States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015) (quoting 21 United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007)). All the foregoing 22 requirements must be met to qualify for coram nobis relief. See Kovacs v. United 23 States, No. CR 2:10-437 WBS, 2017 WL 1153014, at 3 (E.D. Cal. Mar. 27, 2017) 24 (quoting Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002). There 25 is nothing in the record to indicate that district court erred in denying Hammer 26 coram nobis relief, nor is there any reason to believe that the court’s holding 27 would have been different had Defendant Federal Public Defender filed the 28 petition for the writ. 12 3:16-CV-02192-BTM-NLS 1 Plaintiff has not shown that there was anything Defendant Federal Public 2 Defender could have done to modify the restitution order, and from the record it 3 appears Defendant was accurate in advising Plaintiff that the relief he sought 4 was unattainable. 5 2. Plaintiff Cannot Show He Was Harmed: 6 As there is no merit to Plaintiff’s argument that the restitution amount was 7 in error, Defendant Federal Public Defender could not have harmed Plaintiff by 8 not arguing it. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982); 9 see also People v. Pierce, 234 Cal. App. 4th 1334, 1337 (2015) (“Failure to raise 10 a meritless objection is not ineffective assistance of counsel”). There is “no 11 obligation [for counsel] to raise meritless claims.” Acha v. United States, 910 12 F.2d 28, 32 (1st Cir. 1990). In fact Defendant could have caused harm and been 13 held liable for pursuing a claim known to lack merit. See Zamos v. Stroud, 32 14 Cal. 4th 958, 969 (2004) (“Continuing an action one discovers to be baseless 15 harms the defendant and burdens the court system just as much as initiating an 16 action known to be baseless from the outset”). From the record it appears that 17 Defendant Federal Public Defender correctly assessed Plaintiff’s case, 18 reasonably determined that the relief Plaintiff sought was unobtainable, chose 19 not to bring a meritless claim before the court, and withdrew from representing 20 Plaintiff as a result. Plaintiff has not carried the burden of showing he was 21 harmed by Defendant’s representation. 22 If Plaintiff cannot show harm, then his suit against Defendant Federal 23 Public Defender cannot proceed. Though the FTCA is not an available vehicle 24 for Plaintiff in this case, even if it is assumed it applied for the sake of argument, 25 Plaintiff must still show Defendant’s negligence constituted malpractice. See 18 26 U.S.C. §1346(b). In civil malpractice cases, for a plaintiff to establish the 27 defendant’s actions or omissions amounted to malpractice, he or she must 28 demonstrate all the elements of a negligence cause of action, to include “actual 13 3:16-CV-02192-BTM-NLS 1 loss or damage.” Wolk v. Green, 516 F. Supp. 2d 1121, 1129 (N.D. Cal. 2007). 2 Based on the facts alleged by Plaintiff, even if his suit were allowed to proceed 3 under the FTCA (which it is not), he would not prevail as no actual harm can be 4 shown. 5 E. Plaintiff’s Suit Against Defendant Federal Public Defender is Barred: There is no waiver of sovereign immunity in this case, as the express terms 6 7 of the FTCA were not met. Without such a waiver, this Court has no jurisdiction 8 to hear Plaintiff’s case against the Defendant, and the suit is therefore barred for 9 want of subject matter jurisdiction. Furthermore, even if Plaintiff’s suit could 10 proceed under the FTCA, Plaintiff has not alleged sufficient facts to show harm 11 caused by Defendant’s actions or omissions. 12 F. 13 14 Venue The Court does not reach the matter of venue as the issue is made moot by this order. 15 16 17 III. CONCLUSION For the reasons discussed above, Defendant Federal Public Defender’s 18 motion to dismiss pursuant to Rule 12(b)(6) is GRANTED. The Clerk shall enter 19 a final judgment dismissing this case. 20 IT IS SO ORDERED. 21 Dated: August 2, 2017 22 23 24 25 26 27 28 14 3:16-CV-02192-BTM-NLS

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