Salau v. Francis

Filing 19

MEMORANDUM OPINION AND ORDER: The court OVERRULES plaintiff's objections and ADOPTS the 10 Proposed Findings and Recommendation by Magistrate Judge Dwane L. Tinsley, DENIES as moot plaintiff's 2 and 3 Section 2241 Petition, DENIES as moot plaintiff's 8 Application to Proceed Without Prepayment of Fees and Costs, DISMISSES this Section 2241 Petition, and directs the Clerk to remove this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 3/10/2016. (cc: counsel of record and any unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
AHMED OLASUNKANMI SALAU,
Plaintiff,
v.

CIVIL ACTION NO. 1:15-01248

MICHAEL FRANCIS, Warden,
Defendant.

MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of findings and
recommendations regarding disposition pursuant to 28 U.S.C. §
636(b)(1)(B).

Magistrate Judge Tinsley submitted to the court his

Findings and Recommendation on July 30, 2015, in which he
recommended that the district court deny as moot plaintiff’s
petition under 28 U.S.C. § 2241 for a writ of habeas corpus, deny
as moot his application to proceed without prepayment of fees and
costs, and dismiss this action from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge Tinsley’s
Findings and Recommendation.

The failure of any party to file

such objections constitutes a waiver of such party's right to a de
novo review by this court.
Cir. 1989).

Snyder v. Ridenour, 889 F.2d 1363 (4th

On July 31, 2015, plaintiff filed objections to the

PF&R and, on August 10, 2015, he filed supplemental objections

(Docs. No. 12 and 14).

With respect to his objections, the court

has conducted a de novo review.
Plaintiff's complaint herein arises out of his arrest on
state charges in Mercer County, West Virginia, on March 31, 2014.
Upon learning that the criminal charges against Salau had been
dismissed on or about December 17, 2014, Magistrate Judge Tinsley
recommended that the instant action be dismissed as moot.

See

Spencer v. Kemna, 523 U.S. 1, 7 (1998) (holding that a “collateral
consequence” of conviction must exist after a prisoner’s release
in order for her to continue to maintain a challenge to his
confinement).
Salau objects to the recommended dismissal of this action,
arguing that he continues to suffer collateral consequences from
his arrest because he has certain property that was seized at that
time and that it has not been returned to him.
Generally, a case becomes moot when “the issues
presented are no longer live or the parties lack a
legally cognizable interest in the outcome.” Powell v.
McCormack, 395 U.S. 486, 496 (1969). Even if a case
was live at its inception, an actual controversy must
exist during all stages of litigation. “This means
that, throughout the litigation, the [petitioner] ‘must
have suffered, or be threatened with, an actual injury
traceable to the defendant and likely to be redressed
by a favorable judicial decision.’" Spencer v. Kemna,
523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank
Corp., 494 U.S. 472, 477–78 (1990)). Where the
petitioner's sentence has expired, there must be “some
concrete and continuing injury other than the now-ended
incarceration or parole—some ‘collateral consequence’
of the conviction—must exist if the suit is to be
maintained.” Id. The Supreme Court has presumed that
a wrongful criminal conviction has continuing
collateral consequences. Id. at 8. But the Supreme
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Court has refused to extend a presumption of collateral
consequences to other areas, such as parole revocation.
Id. at 14. Thus, where a petitioner does not challenge
his or her underlying conviction(s), the suit's
subsistence typically requires that continuing
collateral consequences be proved. See id. at 8.
Via v. Clarke, Civil Action No. 7:13cv513, 2014 WL 2619904, *1
(W.D. Va. June 12, 2014).
As Magistrate Judge Tinsley noted, there was no criminal
conviction herein as the criminal charges against Salau were
dismissed without prejudice.

Therefore, even assuming that the

collateral consequences exception to mootness applies to a
situation wherein a plaintiff is arrested but not convicted,
plaintiff has not met his burden of showing collateral
consequences stemming from his arrest that are properly addressed
in a habeas proceeding.

"[T]o the extent that petitioner seeks

return of property seized by the police in conjunction with his
arrest and prosecution, such relief is not available in a civil
action seeking habeas corpus relief."

Benoit v. Cain, Civil

Action No. 6:09-2094, 2010 WL 897247, *1 (W.D. La. Mar. 9, 2010);
Ameziane v. Obama, 58 F. Supp. 3d 99, 102 (D.D.C. 2014) ("A legal
challenge to the government's confiscation and continued
possession of petitioner's personal property is not a `proper
claim for habeas relief.'

While a `habeas petition is a vehicle

capable of challenging the basis of a governmental restriction on
a person's liberty,' it is `not capable of addressing private
property rights.'"); Buchanan v. Johnson, 723 F. Supp. 2d 727, 732

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(D. Del. 2010) ("As an initial matter, to the extent claim three
seeks the return of any seized property in connection with
petitioner's arrest, petitioner has failed to assert an Issue
cognizable on federal habeas review."); Olajide v. B.I.C.E., 402
F. Supp. 2d 688, 695 (E.D. Va. 2005) (holding that Nigerian
national's allegation that immigration officials stole his
personal property was not cognizable in § 2241 habeas proceeding);
see also Schoonover v. Merrelli, No. 08-10072, 2008 WL 624064, *1
(E.D. Mich. Mar. 6, 2008) ("The proper remedy for recovery of
property seized as evidence in a criminal case is to file a motion
in the trial court for return of property.").

To the extent that

Salau argues his property was seized improperly, his recourse
would be to file a motion for return of property pursuant to West
Virginia Rule of Criminal Procedure 41(e).

Or, if appropriate, he

could file a federal civil rights action based upon the allegedly
unlawful seizure.

However, his claim is not one properly

considered under the habeas statute.

For all these reasons,

Salau’s objection is OVERRULED.
Furthermore, insofar as Salau contends that this court
should consider his case on the merits because he “could still be
facing charges stemming from the same set of facts,” he does not
have standing to pursue such a claim.
The speculative nature of the injury at issue – future
unlawful custody – implicates yet another
justiciability doctrine: petitioner’s standing to
pursue the habeas petition. Standing requires that the
petitioner suffer a concrete and particularized injury,
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one that is “actual or imminent, not `conjectural’ or
`hypothetical’.”
Isenbarger v. Farmer, 463 F. Supp. 2d 13, 22 n.4 (D.D.C. 2006)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992); see also Toolasprashad v. Grondolsky, 570 F. Supp. 2d 610,
635 (D.N.J. 2008) (challenges based on hypothetical future
developments are speculative and not cognizable in habeas review
since “the language of [the habeas statute] is set forth in
present rather than in future terms, i.e., it reads:

‘The writ of

habeas corpus shall not extend to a prisoner unless . . . he is
[rather than will be] in custody in violation of the Constitution
or the laws or treaties of the United States' ”) (internal
citation omitted)).

Based on the foregoing, plaintiff’s objection

concerning his hypothetical future incarceration is OVERRULED.
Having reviewed the Findings and Recommendation filed by
Magistrate Judge Tinsley, the court hereby OVERRULES plaintiff’s
objections and adopts the findings and recommendations contained
therein.

Accordingly, the court hereby DENIES as moot plaintiff’s

petition under 28 U.S.C. § 2241 for a writ of habeas corpus,
DENIES as moot plaintiff’s application to proceed without
prepayment of fees and costs, DISMISSES this petition under 28
U.S.C. § 2241, and directs the Clerk to remove this case from the
court’s active docket.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).
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A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and that
any dispositive procedural ruling is likewise debatable.

Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,
529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th
Cir. 2001).

The court concludes that the governing standard is

not satisfied in this instance.

Accordingly, the court DENIES a

certificate of appealability.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and unrepresented parties.
IT IS SO ORDERED this 10th day of March, 2016.
ENTER:

David A. Faber
Senior United States District Judge

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