Lee v. IRS/US Treasury et al
DISMISSAL ORDER. Signed by JUDGE DERRICK K. WATSON on 10/31/2013. The Petition and this action are DISMISSED without prejudice but without leave to amend in this court (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROBIN M. LEE,
IRS/U.S. TREASURY, U.S.
ATTORNEYS, DIST. OF HAWAII, )
JUDGE HELEN GILMORE, U.S.
MAGISTRATE KEVIN CHANG,
CIV. NO. 13-00552 DKW/RLP
Petitioner Robin M. Lee is a federal pre-trial detainee who is currently
confined at the Clark County Detention Center, located in Las Vegas, Nevada. Lee
seeks a writ of habeas corpus to dismiss federal criminal charges pending against
him in United States v. Lee, Cr. No. 13-00860 LEK. See Pet., ECF No. 1 (“Writ
of Habeas Corpus, Petitioners [sic] Demand for an Order That His Racketeering
And Fraud Charges Be Dismissed per 14th Amendment Violations”). Because Lee
is a federal detainee under federal indictment, the court construes this Petition as
brought pursuant to 28 U.S.C. § 2241(c)(1). Because the court lacks jurisdiction
over the Petition, it is DISMISSED without prejudice.
The Rules Governing Section 2254 Cases in the United States District
Courts (Habeas Rules) are appropriately applied to proceedings undertaken
pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). Habeas Rule 4 requires the court
to make a preliminary review of each petition for writ of habeas corpus. The Court
must summarily dismiss a petition “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court[.]”
Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires
that a petition state all available grounds for relief, the facts supporting each
ground, and the relief requested. Notice pleading is not sufficient; the petition
must state facts that point to a real possibility of constitutional error. Rule 4,
Advisory Committee Notes, 1976 Adoption; O’Bremski, 915 F.2d at 420 (quoting
Blackledge v. Allison, 431 U.S. 63, 75 n.7(1977)). Allegations in a petition that are
vague, conclusory, or palpably incredible are subject to summary dismissal.
Hendricks, 908 F.2d at 491.
“For a court to hear a petition for writ of habeas corpus, it must have
jurisdiction over the prisoner or his custodian.” Brittingham v. United States, 982
F.2d 378, 379 (9th Cir. 1992) (internal citation omitted). Jurisdiction for habeas
petitions is established by 28 U.S.C. § 2241(a), which provides that “[w]rits of
habeas corpus may be granted by . . . the district courts . . . within their respective
jurisdictions.” “In [habeas] challenges to present physical confinement . . . the
immediate custodian, not a supervisory official who exercises legal control, is the
proper respondent.” Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004); see also Rule
2(a) of the Rules Governing § 2254 Cases. “Whenever a § 2241 habeas petitioner
seeks to challenge his present physical custody within the United States, he should
name his warden as respondent and file the petition in the district of confinement.”
Padilla, 542 U.S. at 447. That is, a petitioner must name the person “with the
ability to produce the prisoner’s body before the habeas court.” Id.
First, Lee names the “IRS, U.S. Treasury, U.S. Attorneys, Dist. of
Hawaii, Judge Helen Gillmore [sic], U.S. Magistrate Kevin Chang.” These entities
and individuals do not have the ability to produce Lee; that responsibility lies with
his immediate custodian at the Clark County Detention Center. Second, Lee is
required to file this petition in the district of his confinement: the United States
District Court for the District of Nevada.
Third, the Petition fails to coherently specify its grounds for relief,
state any plausible facts supporting such grounds, and is not signed under penalty
of perjury. Finally, Lee has already filed a pro se motion to dismiss his federal
criminal charges and another petition for writ of habeas corpus seeking dismissal
of the indictment and immediate release in Cr. No. 13-0860 LEK. See ECF Nos.
148, 159. In this situation, transfer to the District of Nevada is not in the interests
of justice. 28 U.S.C. § 1631; see also Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074
(2001) (internal citations omitted). For these reasons, the Petition is DISMISSED
To the extent a certificate of appealability is required, it is DENIED.1
There is no doubt about the procedural posture of this case, Gonzalez v.. Thaler,
--- U.S. ---, 132 S. Ct. 641, 648 (2012), or its lack of merit, 28 U.S.C. § 2253(c)(2).
A certificate of appealability is required where a § 2241 petition attacks the petitioner’s
conviction or sentence. See Porter v. Adams, 244 F.3d 1006 (9th Cir. 2001). Lee has not been
convicted or sentenced.
The Petition and this action are DISMISSED without prejudice but without leave
to amend in this court. The Clerk of Court is instructed to terminate this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 31, 2013.
/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge
---------------------------------------------------------------------------------------------------Robin M. Lee v. IRS/U.S. Treasury, et al.; CV 13-00552 DKW-RLP; DISMISSAL
Lee v. IRS, et al., 1:13-cv-00552 DKW/RLP;G:\docs\DKW shared\Pro Se Atty\RLee 13-552 dkw (2241, ven. Nev., ftsc, imp.
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