Meek v. Zopan et al
ORDER. This Court DISMISSES Petitioner's Petition 1 , without prejudice. Petitioner's Motions for Preliminary Injunction, to Compel, and for Appointment of Counsel (contained in the Petition) are DENIED. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a Certificate of Appealability is DENIED. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 3/6/2017 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 6:17-cv-00227-SB
JENICE ZOPAN, Probation Officer, Klamath
County Community Corrections, STATE OF
OREGON, Department of Justice, and
NATALIE JEAN ZITIK,
Petitioner brings this proceeding pursuant to 28 U.S.C. § 2254 and 42 U.S.C. § 1983,
challenging the legality of his state conviction for Criminal Nonsupport. Pet. (ECF No. 1) at 3. 1
Petitioner's 149-page Petition chronicles the dispute over his child-support obligations beginning
in 2000, and culminating in his criminal conviction for nonsupport in 2014. Jd. at 14-94. Petitioner
names as Respondents Klamath County Probation Officer Jenice Zopan, the Oregon Department of
Justice, and Natalie Jean Zitik. Id. at 1.
The Court notes that Petitioner paid the $5.00 filing fee for a habeas corpus proceeding,
not the $400.00 filing fee for a civil rights action. See 28 U.S.C. § 1914(a) & (b).
Petitioner seeks (1) a writ of habeas corpus on the ground that his conviction was obtained
in violation of the Constitution of the United States; (2) a declaratory judgment that the 2008
Deschutes County Circuit Court civil Order underlying his criminal conviction is void; and (3) a
preliminary injunction "to temporarily preclude the State of Oregon from initiating any new civil or
criminal action[ s] that attempt to enforce the civil court order until its validity has been determined
on its merits in the federal courts." Id. at 2.
As set forth below, this Court dismisses the Petition on the basis that (1) to the extent
Petitioner seeks habeas relief, he has not named the proper Respondents and has failed to exhaust
his available state remedies; (2) his civil rights claims are a de facto state appeal inextricably
intertwined with the state court judgment; (3) his civil rights claims implicate the legality of his
conviction; and (4) his request for preliminary injunctive relief is moot.
Petitioner alleges that the Deschutes County Circuit Court entered a Judgment in 1995 "as
patt of [his] divorce proceeding where [he] was ordered to pay $180 per month in child support."
Id. at 13. In 2008, an administrative law judge entered an Order increasing Petitioner's existing
child-support obligation to $580 per month. Id. at 32-35. The Order was filed in the Deschutes
County Circuit Court for approval. Id. at 33.
In 2014, Petitioner was convicted of two counts of Criminal Nonsupport in Klamath County
Circuit Court. Id. at 3; see Oregon v. Meek, No. A158911 (state court docket). Petitioner filed a
direct appeal raising state law issues only. See Oregon v. Meek, No. Al58911, 2015 WL 12662110
(Or. App. Oct. 26, 2015) (Appellant's Opening Brief). The Oregon Court of Appeals affirmed
Petitioner's conviction, without opinion. Oregon v. Meek, 385 P.3d 96 (Or. App. 2016). Petitioner
filed a Petition for Review that is pending before the Oregon Supreme Court. See Oregon v. Meek,
No. Al5891 l (state court docket); Pet. at 114.
Habeas Corpus Relief (28 U.S.C. § 2254)
Petitioner sets forth fourteen grounds for relief challenging his conviction for Criminal
Nonsupport. Pet. at 118-32. In his prayer for relief, Petitioner alleges that he is actually innocent and
moves the Court to reverse his conviction. Id. at 132.
Petitioner has failed to name the proper state officials as Respondents. See Rule 2(a), Rules
Governing Section 2254 Cases in the United States District Courts. Based on Petitioner's asse1iion
that he was serving a term of probation which expired the day he filed his Petition, the proper
Respondents are Petitioner's probation officer, the Chairperson of the Oregon Board of Parole and
Post-Prison Supervision Michael Wu, and Oregon Attorney General Ellen Rosenblum. See Advisory
Committee Notes to Rule 2 of the Rules Governing Section 2254 Cases in the United States District
Courts. Petitioner's failure to namethe proper Respondents deprives this Court ofjurisdiction. Smith
v. Idaho, 392 F.3d 350, 354-56 (9th Cir. 2004).
Petitioner shall not be given leave to amend his Petition to name the proper Respondents
because it appears from the face of the Petition that Petitioner has not exhausted his available state
court remedies. See 28 U.S.C. § 2254(b)(l) (requiring state prisoner to exhaust available state
remedies). To the extent Petitioner raised any of his current claims on direct appeal, those claims
are not exhausted because his appeal remains pending. Further, because state post-conviction relief
is available to Petitioner after the conclusion of his direct appeal (see Or. Rev. Stat. §§ 138.540 &
138.550), he has not exhausted his available state remedies. This Court is not convinced by
Petitioner's assertion that exhaustion should be excused because state remedies are unavailable or
ineffective. See 28 U.S.C. § 2254(b)(l)(B)(i) & (ii).
Finally, Petitioner has failed to set forth good cause to stay this proceeding pending the
exhaustion of his state remedies. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (holding that
court may stay habeas proceeding upon a showing that the petitioner has good cause for his failure
to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in dilatory tactics); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016)
(holding that court has the discretion to stay a fully unexhausted petition). For all of these reasons,
this Court dismisses the Petition, without prejudice, to the extent that Petitioner seeks habeas relief.
Civil Rights Action (42 U.S.C. § 1983)
Petitioner alleges six claims for relief pursuant to 42 U.S. C. § 1983. Pet. at 13 8-41. Petitioner
alleges that the underlying child support Order, as modified in 2008, is invalid; the Child Support
Administrator provided false testimony during the 2008 proceeding; and the Klamath County
Prosecutor acted in bad faith and engaged in prosecutorial misconduct during the course of
Petitioner's subsequent criminal prosecution. Id at 13 7-41. In his prayer for relief, Petitioner seeks
an Order that (1) "declares the civil judgment void or invalid, and declares the conviction invalid;"
and (2) "instructs the State of Oregon to delete all state records pertaining to his arrest, and
conviction, and to remove [his] name from all court records, as well as a generic order that requires
all private entities to delete all records pertaining to the arrest and conviction from their database[ s]."
Id at 141.
To the extent that Petitioner is challenging the legality of his criminal conviction, including
allegations that the Prosecutor misled the court and engaged in misconduct (see id at 13 8-41 ), and
seeks a declaration that his criminal conviction is invalid (see id. at 141 ), a writ of habeas corpus is
Petitioner's sole remedy. See Freiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that when
state prisoner is challenging his confinement and seeks immediate or speedier release, his sole
remedy is a writ of habeas corpus); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016)
(concluding that habeas is the exclusive remedy for claims brought by state prisoners that fall within
the "core of habeas").
To the extent that Petitioner is challenging the legality of the 2008 Order and seeks a
declaration that the Order is invalid, this Court lacks subj eel matter jurisdiction because the Petition
is a de facto appeal of the Deschutes Circuit Court's Order, and raises issues that are "inextricably
intertwined" with the state court decision. See Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir.
2013) ("A de facto appeal exists when a federal plaintiff asserts as a legal wrong an allegedly
erroneous decision by a state court, and seeks relief from a state court judgment based on that
decision.") (internal quotations omitted); Cooper v. Ramos, 704 F.3d 772, 779 (9th Cir. 2012)
(holding that claims are inextricably intertwined when the requested relief would effectively reverse
the state court decision or void its ruling). Pursuant to the Rooker-Feldman doctrine, federal courts
lack subject matter jurisdiction "when the federal plaintiff both asserts as her injury legal error or
errors by the state court and seeks as her remedy relief from the state court judgment." Kougasian
v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004); Cooper, 704 F.3d at 777-78. 2
Although an exception to the Rooker-Feldman doctrine exists when a plaintiff alleges
extrinsic fraud on the state COllli, that exception does not apply to intrinsic fraud. Dixon v. State Bar
The Rooker-Feldman doctrine is premised on the Supreme Court's decisions in Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923), and D.C. Court ofAppeals v. Feldman, 460 U.S. 462
(1983). Kougasian, 359 F.3d at 1139.
ofCal., 32 F. App'x 355, 356-57 (9th Cir. 2002). Extrinsic fraud is wrongful conduct of the adverse
party which prevented the plaintiff from presenting his claim in court. Kougasian, 359 F.3d at 114041. Intrinsic fraud, in contrast, is fraud that goes to the heart of the issues that were before the state
court. See Dixon, 32 F. App'x at 356-57 (allegations of discriminatory prosecution and the use of
fabricated evidence are intrinsic fraud); Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981)
(allegations of perjury are, at best, intrinsic fraud).
Here, Petitioner is challenging the legality of the 2008 Order underlying his criminal
conviction on the basis that the Child Support Administrator committed perjury and/or mislead the
state court by testifying that Petitioner's overdue child support payments were owed to his ex-wife,
despite the fact that the support obligation had been "redirected" to Judy Land (the grandmother of
Petitioner's children). See Pet. at 15, 34-35, 54, 71-73, 140. Petitioner concludes that as a result of
the Administrator's fraud, the state court lacked personal and subject matter jurisdiction because
Land was not a party to the action. Id. at 43-44, 78.
Petitioner's allegations are not extrinsic or collateral to the issues before the state court, and
the alleged fraud did not prevent Petitioner from presenting his arguments in state comi. At best, his
claims constitute intrinsic fraud. His requested relief would effectively reverse the state court
decision or void its ruling. Accordingly, the alleged fraud does not provide an exception to the
Rooker-Feldman doctrine. 3
Petitioner also alleges that an Assistant Attorney General committed fraud in 2015
during post-trial proceedings in his criminal case and in a subsequent civil proceeding (see Pet. at
89-99, 135, 141). Alleged fraud in 2015 does not provide a jurisdictional basis for this Court to
review the legality of the 2008 civil Order.
In the alternative, if this Court has subject matter jurisdiction over Petitioner's civil rights
claims, he fails to state a claim for which relief may be granted because his claims implicate the
legality of his Criminal Nonsupport conviction. The Supreme Court has held that in order to recover
damages for harm "caused by actions whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Edwardv. Balisok, 520 U.S. 641, 648 (1997)
(extending Heck to request for declaratory relief). Petitioner's conviction for Criminal Nonsupport
has not been reversed, declared invalid, or called into question by the issuance of a writ of habeas
corpus. Petitioner's allegations necessarily imply the invalidity of his conviction. Accordingly, his
claims are dismissed pursuant to the reasoning in Heck.
Motions Contained in the Petition
Because this Court has dismissed the Petition, the Court denies Petitioner's Motions for
Preliminary Injunction and to Compel (see Pet. 142-47) as moot. Additionally, this Court denies
Petitioner's Motion for Appointment ofConnsel (see id. at 5) because the interests ofjustice do not
warrant an appointment nnder 28 U.S.C. § 3006A(2)(B), and this is not an exceptional case
warranting the appointment of pro bona counsel under 28 U.S.C. § 1915(e)(l).
Based on the foregoing, this Court DISMISSES Petitioner's Petition (ECF No. 1), without
prejudice. Petitioner's Motions for Preliminary Injunction, to Compel, and for Appointment of
Counsel (contained in the Petition) are DENIED. Because Petitioner has not made a substantial
showing of the denial of a constitutional right, a Certificate of Appealability is DENIED. See 28
U.S .C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this _ _ day of March, 2017.
Anna J. Brown
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?