Li v. Holder

Filing 2

ORDER granting Plantiff's application to proceed In Forma Pauperis; DISMISSING CASE; The Court certifies that any appeal from this decision could ot be taken in good faith. Signed by District Judge Avern Cohn. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
XIANG LI,
Plaintiff,
v.

Case No. 14-10360

ERIC HOLDER, JR.,

HON. AVERN COHN

Defendant.
___________________________________/
ORDER
GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS
AND
DISMISSING COMPLAINT
I.
Plaintiff Xiang Li, proceeding pro se, has filed a complaint naming as defendant Eric
Holder, Jr. in his official capacity as Attorney General of the United States. Plaintiff seeks
a declaratory judgment that Title 18 U.S.C. § 875(c) (Interstate communications) is
unconstitutional. On May 19, 2008, Plaintiff was convicted in the Northern District of New
York of eleven counts of transmitting threats by interstate commerce in violation of
§ 875(c).1 As best as can be gleaned by Plaintiff’s complaint, he seeks a declaration that
§ 875(c) is unconstitutional on its face and as it was applied in his case. For the reasons
1

The case is United States of America v. Xiang Li, No. 5:07-cr-00272 (N.D. N.Y.
May 19, 2008). Plaintiff appealed his conviction. See United States v. Li, 381 F. App’x
38 (2d Cir. 2010). After the Second Circuit affirmed the conviction, Plaintiff sought
review in the United States Supreme Court; it was denied. See Li v. United States, 131
S.Ct. 613 (2010), rehearing denied 131 S.Ct. 990 (2011).
Plaintiff also filed a petition for writ of habeas corpus. The petition was denied by
the district court. United States of America v. Xiang Li, No. 5:07-CR-272 (N.D. N.Y. July
7, 2011) (Doc. 147). The Second Circuit dismissed Plaintiff’s appeal, denying him a
certificate of appealability because he did not make a “substantial showing of the denial
of a constitutional right.” Id. at (Doc. 155) (citing 28 U.S.C. 2253(c)(2)).

that follow, the complaint will be dismissed for failure to state a claim.
II.
Plaintiff has not filed an application to proceed in forma pauperis. Nor has Plaintiff
paid the filing fee. However, Plaintiff’s complaint states that he is indigent. For example,
the complaint states that, due to Plaintiff’s “poverty,” “he can only refer to the locations of
the documents which he uses as exhibits in this action.” He is currently incarcerated at the
Moshannon Valley Correctional Center in Philipsburg, Pennsylvania. Although Plaintiff has
not filed an affidavit to proceed in forma pauperis, the Court construes the representations
in Plaintiff’s complaint as an application to proceed in forma pauperis. Under 28 U.S.C. §
1915, the Court GRANTS Plaintiff in forma pauperis status.
III.
Under 28 U.S.C. § 1915 (e)(2)(B) a court may dismiss a complaint at any time if it
determines that the case is frivolous or malicious, that the plaintiff fails to state a claim upon
which relief may be granted. A complaint "is frivolous where it lacks an arguable basis
either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). In determining
whether a complaint is frivolous, the Court must read pro se complaints indulgently, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept plaintiff's allegations as true,
unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25,
33 (1992).
IV.
To the extent that Plaintiff seeks to have his convictions vacated by way of this civil
action asking for a declaratory judgment, his complaint is subject to dismissal because he
is seeking this Court’s review of issues that have already been decided by other courts.
2

Plaintiff presented his claims in a direct appeal and in a petition for writ of habeas corpus.
His claims were rejected.
In addition, Plaintiff’s position that § 875(c) is unconstitutional, both on its face and
as applied to him, is without merit. The Second Circuit addressed this issue in Plaintiff’s
direct appeal:
With respect to his challenge to the constitutionality of § 875(c), we are bound by
our prior decisions holding that provision constitutional, as it criminalizes only true
threats. See United States v. Francis, 164 F.3d 120, 122–23 (2d Cir. 1999); United
States v. Kelner, 534 F.2d 1020, 1028 (2d Cir. 1976). Similarly our precedent
provides that the statute is constitutional even though there is no requirement that
the Government prove that the defendant intended to carry out his threats. See
Francis, 164 F.3d at 122–23.
In addition to reiterating that the statute of conviction is constitutional, we hold that
the conviction is supported by sufficient evidence. . . .
Li, 381 F. App’x at 39.
For these reasons, the complaint is DISMISSED. The Court certifies that any appeal
from this decision could not be taken in good faith. See 28 U.S.C. § 1915(a)(3).
SO ORDERED.
s/Avern Cohn
UNITED STATES DISTRICT JUDGE

Dated: February 11, 2014
I hereby certify that a copy of the foregoing document was mailed to the attorneys/parties
of record on this date, February 11, 2014, by electronic and/or ordinary mail.

s/Carol Bethel for Sakne Chami
Case Manager, [phone]

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