Descamps v. United States of America

Filing 9

ORDER TO PROCEED IN FORMA PAUPERIS AND ORDER DISMISSING PETITION - DCE shall file Petition without payment of the filing fee. The court further certifies that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. 2253(c);Fed. R. App. P. 22(b). Signed by Senior Judge Fred Van Sickle. (SMP, Case Administrator)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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MATTHEW ROBERT
DESCAMPS,

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Petitioner,
vs.
UNITED STATES OF AMERICA
and FRED VAN SICKLE,

NO. 13-CV-00424-FVS
ORDER TO PROCEED IN FORMA
PAUPERIS AND ORDER DISMISSING
PETITION

Respondent.
BEFORE THE COURT is Petitioner’s pro se Petition for Writ of Habeas Corpus

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under 28 U.S.C. § 2241. Petitioner, a federal prisoner currently housed at the Spokane

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County Jail pending re-sentencing in cause number 05-CR-00104-FVS-1, seeks leave to

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proceed in forma pauperis. Because it appears Petitioner lacks sufficient funds to

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prosecute this action, IT IS ORDERED that the District Court Executive shall file the

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Petition without payment of the filing fee.

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On the Petition form, Mr. Descamps claims that his Tenth Amendment rights were

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violated while he was a pretrial detainee. He also asserts unspecified Sixth, Eighth, and

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Fourteenth Amendment violations, due to the alleged misrepresentation of an

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unidentified attorney. Petitioner claims that he is being unlawfully held and assaulted by

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Guards. Complaints about the conditions of a prisoner’s confinement are more properly
pursued separately in either a § 1983 civil rights complaint (against state actors) or in an
action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)

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ORDER TO PROCEED IN FORMA PAUPERIS AND ORDER DISMISSING
PETITION -- 1

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(against federal actors) in the jurisdiction where the alleged assaults occurred. Claims

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concerning the conditions of one’s confinement are generally not cognizable on habeas

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review. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991).

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In addition, Petitioner appears to be challenging charges of attempted escape and

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threatening his wife. It does not appear that either of these charges arose in the Eastern

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District of Washington. Therefore, if Petitioner wishes to challenge pending charges, he

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should do so in the jurisdiction in which they arose.

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Petitioner also complains that the undersigned judicial officer has not provided
hearings for his various motions and complaints. He apparently seeks to have another

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judge hear his case. Mr. Descamps’ previous requests to have the undersigned judicial

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officer removed from his criminal case were denied. See 05-CR-00104-FVS-1, ECF Nos.

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303 and 384. He has presented no new basis warranting recusal under 28 U.S.C. §

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455(a). Once again, a party may not obtain recusal based upon an adverse

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ruling. Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999). To the extent

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Petitioner is seeking to recuse the undersigned judicial officer, his request is DENIED.

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HABEAS PETITION
The Court is obliged to screen Mr. Descamps’ petition to determine whether he is
entitled to relief under § 2241. See Rule 4, Rules Governing 28 U.S.C. § 2254 Cases;
(applicable to § 2241 petitions under Rule 1(b)); see also 28 U.S.C. § 2243. The Court
may summarily dismiss a petition if it appears from its face that Petitioner is not entitled
to relief. See 28 U.S.C. § 2243.
The four asserted grounds for relief on the petition form appear confused. First,
Petitioner asserts that “judicial misconduct prejudice against poor people” caused his

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father to have a heart attack and die. Next, he claims he has “never justfully [sic] and
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legally been represented by a[n] attorney that has done as [he] ask[ed].” In his third
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ground for relief, Petitioner asserts that “all the facts” were not “constitutional[ly]
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ORDER TO PROCEED IN FORMA PAUPERIS AND ORDER DISMISSING
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presented by [his] attorneys for state all through federal court.” He also claims the

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undersigned judicial officer “unlawfully unconstitutionally dismissed” all of his motions

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without hearing them. None of these assertions are supported by facts which would

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entitled Mr. Descamps to relief.

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In his request for relief, Petitioner states merely that he “need[s] a[n] attorney to

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represent [him] properly.” The Court notes that attorney Chris Bugby has been appointed

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to represent him in the criminal matter. He is at least the sixth attorney appointed in

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cause number 05-CR-00104-FVS-1. A court-appointed attorney is appointed solely for

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the purpose of representing the accused in a criminal matter. To the extent Mr. Descamps

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may have believed that appointed attorney was available to represent him in the

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investigation and/or filing of a civil rights complaint under 42 U.S.C. § 1983, he was

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mistaken.

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Petitioner also contends that the U.S. Supreme Court decision, Alleyne v. United

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States, ___ U.S. ___, 133 S.Ct. 2151 (2013)(because brandishing a firearm, rather than

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merely carrying it, in connection with a crime of violence, increases the mandatory

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minimum sentence by two years, it is an element of the offense which must be found by a

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jury), applies to the circumstances of his case. Petitioner, however, fails to provide facts
showing how the Alleyne decision is applicable. Regardless, this is an issue which may
be presented in his pending criminal matter.
SUPPLEMENTAL DOCUMENTS
On January 3, 2014, the Court received numerous documents from Mr. Descamps,
including: “Statement of the Unlawful Unconstitutional Actions of Judge Fred Van
Sickle” (9 pages), ECF No. 6; “Table of Contents/Statement of the Case” (10 pages),

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ECF No. 7, and “Miscellaneous Pages 1-35" (35 pages), ECF No. 8. On January 9, 2014,
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the Court received an additional 32 pages of documents, ECF No. 5, consisting of
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numerous declarations and certificates of service by mailing (6 pages); a “Statement to:
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ORDER TO PROCEED IN FORMA PAUPERIS AND ORDER DISMISSING
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Newspapers” (1 page); a “Formal Complaint” to Attorneys General (1 page); a

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“Declaration of Unconstitutionality” in which Petitioner asserts that he has complained

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about the undersigned judicial officer to the Supreme Court and Ninth Circuit Court of

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Appeals, claiming his many motions, writs and statements have been wrongfully

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dismissed and that none of his attorneys has ever helped him as they have not appealed or

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argued as he has asked them (7 pages); a document titled, “United States Judge Fred Van

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Sickle!,” complaining that his sentence was unconstitutionally enhanced and he was

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unlawfully charged booking fees (1 page); and a “Declaration of: . . . unconstitutionality

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and outrageous government misconduct” (16 pages).

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In these supplemental documents Mr. Descamps asserts that he objected to a “so-

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called signed statement” at a suppression hearing, and appears to be asserting that he was

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questioned unlawfully in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that

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an ATF agent presented false information regarding this “signed statement” in violation

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of 18 U.S.C. § 1001. ECF No. 6. He also appears to contend the undersigned judicial

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officer lacked authority to order a mental evaluation. Id. This contention lacks merit. See

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18 U.S.C. § 4241.

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§ 2241 PETITION
Mr. Descamps has successfully challenged the calculation of his sentence to the
U.S. Supreme Court in cause number 05-CR-00104-FVS-1. Because the judgment in
Petitioner’s criminal case is not yet final, the Court has not had an opportunity to rule on
a properly filed habeas petition. The Court notes that challenges to federal criminal
proceedings should be brought in the pending criminal matter.
The Court finds the present petition pursuant to 28 U.S.C. § 2241, even

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supplemented with his additional documents, either does not assert claims which entitle
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Mr. Descamps to relief or Petitioner may assert his claims in the pending criminal matter.
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Therefore, IT IS ORDERED the Petition is DENIED without prejudice to raising
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ORDER TO PROCEED IN FORMA PAUPERIS AND ORDER DISMISSING
PETITION -- 4

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issues appropriately in 05-CR-00104-FVS-1.1 The Court finds there is no arguable basis

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in law or fact for appealing this decision.

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IT IS SO ORDERED. The District Court Executive is directed to enter this
Order, enter judgment, forward a copy to Petitioner and close this file.
DATED this

16th

day of January 2014.

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s/ Fred Van Sickle
FRED VAN SICKLE
SENIOR UNITED STATES DISTRICT JUDGE

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Petitioner asserts that predicates out of Stevens and Pend Orielle Counties in

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Washington State are being used unconstitutionally. ECF No. 8, page 2. Because Mr.
Descamps’ re-sentencing in 05-CR-104-FVS is not scheduled until February 21, 2014,
this challenge in a separate habeas action is pre-mature and improper. Petitioner should
raise it appropriately through assigned counsel in the underlying criminal matter.
ORDER TO PROCEED IN FORMA PAUPERIS AND ORDER DISMISSING
PETITION -- 5