(HC)Mehmood v. Garcia et al, No. 1:2015cv01585 - Document 4 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED; re 1 Petition for Writ of Habeas Corpus filed by Yasir Mehmood and Further Ordered to assign a District Court Judge to the instant matter; new case number: 1:15-cv-1585 DAD MJS (HC); referred to Judge Drozd, signed by Magistrate Judge Michael J. Seng on 01/23/2016. Objections to F&R due by 2/29/2016 (Martin-Gill, S)

Download PDF

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 Case No. 1:15-cv-01585 MJS (HC) YASIR MEHMOOD, 12 FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF Petitioner, HABEAS CORPUS v. 13 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER 14 15 RYAN GARCIA, et al., Respondents. 16 17 Petitioner is a federal pretrial detainee proceeding pro se with the instant petition 18 19 20 21 22 23 24 25 26 27 28 for habeas corpus pursuant to 28 U.S.C. § 2241. I. BACKGROUND On October 16, 2015, Petitioner filed the instant petition for writ of habeas corpus. Petitioner is not in custody as the result of a state or federal court criminal judgment. Petitioner is a federal pretrial detainee and currently subject to prosecution on criminal charges in the Sacramento Division of the Eastern District of California in United States v. Mehmood, Case No. 2:12—cr—00154-JAM. Trial in the underlying criminal matter is currently set for July 11, 2016. Id. at ECF No. 403. On March 1, 2013, a pretrial services violation petition was filed and a warrant was issued for Petitioner's arrest. (See Pet.) Petitioner alleges that the arrest warrant was illegally issued because the pretrial 1 1 services violation petition was not accompanied by an affidavit, as required by the Fourth 2 Amendment, and therefore did not establish probable cause. (Id.) 3 I. SCREENING THE PETITION 4 Because the petition was filed after April 24, 1996, the effective date of the 5 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA applies to the 6 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 7 1499 (9th Cir. 1997). 8 The Rules Governing Section 2254 Cases in the United States District Courts 9 (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 10 U.S.C. § 2241. Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a 11 preliminary review of each petition for writ of habeas corpus. The Court must summarily 12 dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that 13 the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. 14 Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 15 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief 16 available to the Petitioner; 2) state the facts supporting each ground; and 3) state the 17 relief requested. Notice pleading is not sufficient; rather, the petition must state facts that 18 point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 19 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 20 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably 21 incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491. 22 Further, the Court may dismiss a petition for writ of habeas corpus either on its 23 own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or 24 after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 25 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). 26 III. DISCUSSION 27 Pursuant to 28 U.S.C. § 2241, the courts have jurisdiction to consider a habeas 28 petition brought by a federal pretrial detainee. Although Section 2241 establishes 2 1 jurisdiction in the federal courts to consider pretrial habeas petitions, the courts should 2 abstain from the exercise of that jurisdiction if the issues raised in the petition may be 3 resolved either by trial on the merits or other procedures available to the petitioner in the 4 pending criminal case. See, Fay v. Noia, 372 U.S. 391, 417-20, 83 S. Ct. 822, 9 L. Ed. 5 2d 837 (1963); Jones v. Perkins, 245 U.S. 390, 391-92, 38 S. Ct. 166, 62 L. Ed. 358 6 (1918); Riggins v. United States, 199 U.S. 547, 550-51, 26 S. Ct. 147, 50 L. Ed. 303 7 (1905). 8 A pretrial detention ruling can be challenged in the context of the criminal case, 9 and therefore is not appropriately challenged in a separate § 2241 proceeding. See 10 Fassler v. United States, 858 F.2d 1016, 1018-1019 (5th Cir. 1988) (per curiam) 11 (criticizing habeas petitioner's decision to challenge constitutionality of pretrial detention 12 order in habeas rather than through an appeal brought pursuant to 18 U.S.C. § 3145, but 13 declining to find § 3145 offered exclusive remedy); United States v. Pipito, 861 F.2d 14 1006, 1009 (7th Cir. 1987) (holding that it was not error for the district court to refuse to 15 consider habeas petition because petitioner should have followed procedures in 18 16 U.S.C. § 3145); Whitmer v. Levi, 276 F. App'x 217, 219 (3rd Cir. 2008) (per curiam) 17 (holding that petitioner challenging his pretrial detention in habeas did not seek an 18 appropriate remedy because adequate remedies were available in his criminal case). 19 Petitioner's criminal case is ongoing, and any challenges to his pretrial detention 20 should be pursued in the criminal case. Accordingly, his petition should be summarily 21 dismissed. 22 The petition should also be dismissed because Petitioner fails to state a claim for 23 relief. The Fourth Amendment to the United States Constitution states that "no Warrants 24 shall issue, but upon probable cause, supported by Oath or affirmation." An unsworn 25 declaration made under penalty of perjury has the same force and effect as a "sworn 26 declaration, verification, certificate, statement, oath, or affidavit." 28 U.S.C. § 1746. An 27 unsworn declaration that complies with 28 U.S.C. § 1746 satisfies the requirements of 28 the Fourth Amendment because "signing a statement under penalty of perjury satisfies 3 1 the standard for an oath or affirmation." United States v. Bueno-Vargas, 383 F.3d 1104, 2 1110 (9th Cir. 2004) (finding that an unsworn probable cause statement that was signed 3 under penalty of perjury and faxed to the magistrate judge satisfied Fourth Amendment's 4 oath and affirmation requirement). Petitioner attaches a copy of the pretrial services 5 violation petition which was signed under penalty of perjury. ECF No. 1 at 30-32. The 6 oath or affirmation requirement of the Fourth Amendment was therefore satisfied and 7 petitioner is not entitled to relief. 8 9 For these reasons set forth above, the petition should be summarily dismissed. III. RECOMMENDATION 10 Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ 11 of habeas corpus be DISMISSED. Further, the Clerk of Court is ORDERED to assign a 12 district court judge to the instant matter. 13 These Findings and Recommendations are submitted to the assigned United 14 States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) 15 and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern 16 District of California. Within thirty (30) days after being served with a copy, Petitioner 17 may file written objections with the Court. Such a document should be captioned 18 "Objections to Magistrate Judge's Findings and Recommendations. The Court will then 19 review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is 20 advised that failure to file objections within the specified time may waive the right 21 to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 22 2014). 23 24 25 26 IT IS SO ORDERED. Dated: January 23, 2016 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 27 28 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.