White v. United States Of America et al

Filing 3

REPORT AND RECOMMENDATIONS that the Court DISMISS WITHOUT PREJUDICE White's 1 Petition for Writ of Habeas Corpus filed by Anthony S. White. It is Recommended that the Court DENY the issuance of a Certificate of Appealabilty. Signed by Judge Andrew W. Austin. (klw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

ANTHONY S. WHITE
V.
UNITED STATES OF AMERICA &
VERNON STATE HOSP.

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A-11-CV-904 SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
Before the Court is Anthony White’s Petition for Writ of Habeas Corpus (Clerk’s Doc. No.

1). By standing order, the Application is before the Court for Report and Recommendation pursuant
to 28 U.S.C. § 636(b) and Rule 1(c) of the Appendix C of the Local Rules of the United States
District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
Magistrate Judges.
Petitioner Anthony White is currently committed at the Vernon State Hospital while awaiting
trial in Hays county. The trial judge found him incompetent on August 4, 2011. In his petition,
White challenges his commitment and requests the Court to order his release from the hospital. He
argues that the Defendants violated his 5th, 8th, 9th, 13th, and 14th Amendment rights when it found
him incompetent and refused to release him1 after he passed a written competency test and took his
medication.

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It does not appear that the United States or Vernon State Hospital were involved in the
commitment, yet they are the only named defendants.

I.

White’s failure to pay a filing fee or file a motion to proceed in forma pauperis
White failed to pay a filing fee or file a motion to proceed in forma pauperis in this case, but

he did file an in forma pauperis motion in a related case, 1:11-CV-814, and the undersigned granted
that motion.2 The Court will therefore allow White to proceed in forma pauperis in this case as well,
pursuant to 28 U.S.C. § 1915(a)(1).
Under § 1915(e)(2)(B), “the court shall dismiss the case at any time” if it determines that the
case is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief against a immune defendant. 28 U.S.C. § 1915(e)(2)(B). A case is “frivolous” under
§ 1915 if it lacks an arguable basis in law or fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.
Id. (citing Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A complaint is factually frivolous if “the
facts alleged rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 504
U.S. 25, 32–33 (1992). Under § 1915(e)(2)(B), the Court applies the same standard as under Rule
12(b)(6) to determine whether the complaint states a claim for relief. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. — , 129 S. Ct. 1937, 1949 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A claim for relief is implausible on its face

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Clerk’s Doc. No. 3.
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when “the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct.” Id. at 1950.
When reviewing a plaintiff's complaint under § 1915, the court must construe the plaintiff’s
allegations as liberally as possible. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the
plaintiff’s pro se status does not offer him “an impenetrable shield, for one acting pro se has no
license to harass others, clog the judicial machinery with meritless litigation and abuse already
overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
With these standards in mind, the Court will now review Smith’s Complaint under § 1915(e)(2)(B).
II.

Analysis
White filed his petition pursuant to 28 U.S.C. § 2241. Section 2241, however, is used to

challenge the manner in which a federal sentence is executed. See Warren v. Miles, 230 F.3d 688,
694 (5th Cir. 2000). White does not challenge the execution of his sentence. He instead seeks to
have this Court order the state court take specific action—to find him competent and release him.
Federal courts lack “the general power to issue writs of mandamus to direct state courts and
their judicial officers in the performance of their duties where mandamus is the only relief sought.”
Moye v. Clerk, Dekalb County Sup. Ct., 474 F.2d 1275, 1276 (5th Cir. 1973). In this case, White
seeks only mandamus relief against the Respondent. This Court is without power to enter such an
order. Absent extraordinary or special circumstances, federal courts are prohibited from interfering
with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37, 44 (1971).
Additionally, federal courts should abstain from interfering with matters that are pending in the state
courts “if the issues raised in the petition may be resolved either by a trial on the merits in the state

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court or by other state procedures available to the petitioner.” Dickerson v. Louisiana, 816 F.2d 220,
225 (5th Cir. 1987) (citing Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489–92 (1973)).
Because White has failed to allege “extraordinary or special circumstances,” the Court cannot
issue a writ of mandamus to the state court and require it to release him. Further, the Court should
abstain from determining whether White is competent because his competency “may be resolved
either by a trial on the merits in the state court or by other state procedures available” to him. Id.
Therefore, the Court RECOMMENDS that the District Court DISMISS Anthony White’s Petition
for Writ of Habeas Corpus (Clerk’s Doc. No. 1) without prejudice.
III.

Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus

proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). A certificate of appealability may issue only if a petitioner has made a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully
explained the requirement associated with a “substantial showing of the denial of a constitutional
right” in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a
petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”
Id. “When a district court denies a habeas petition on procedural grounds without reaching the
petitioner’s underlying constitutional claim, a COA should issue when the petitioner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id.
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In this case, reasonable jurists could not debate the dismissal of White’s section 2241 petition
on substantive or procedural grounds, nor find that the issues presented are adequate to deserve
encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S.
at 484). Accordingly, it is respectfully recommended that the Court shall not issue a certificate of
appealability.
SIGNED this 28th day of October, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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