(HC) Fordjour v. Jordan, et al., No. 1:2009cv00060 - Document 29 (E.D. Cal. 2010)

Court Description: FINDINGS And RECOMMENDATIONS To Dismiss The Petition As Moot And To Decline To Issue A Certificate Of Appealability (Doc. 1 ), Objections Due Within 30 Days, signed by Magistrate Judge Sheila K. Oberto on 9/2/2010. It is RECOMMENDED that: The petition be DISMISSED as moot. The Court DECLINE to issue a certificate of appealablity; and The Clerk be DIRECTED to close the action. F&R's referred to Judge Oliver W. Wanger; Objections to F&R due by 10/7/2010. (Scrivner, E)
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(HC) Fordjour v. Jordan, et al. Doc. 29 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHARLES FORDJOUR, ) ) ) ) ) ) ) ) ) ) ) ) ) 11 Petitioner, 12 13 14 v. KINGS COUNTY SHERIFF CHRIS JORDAN, et al., 15 Respondents. 16 1:09-cv—00060-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS MOOT AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY (Doc. 1) OBJECTIONS DUE WITHIN 30 DAYS 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2241. 21 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 22 302 and 303. 23 filed on January 12, 2009. The matter has been referred to the Pending before the Court is the petition, which was 24 I. 25 On June 8, 2009, the Magistrate Judge issued findings and Background 26 recommendations to deny Petitioner’s motions for release and for 27 injunctive relief. 28 Magistrate Judge also recommended dismissal of the petition (Doc. 10.) In the same document, the 1 Dockets.Justia.com 1 because Petitioner, who complained of his pretrial detention with 2 respect to state criminal charges, purported to proceed pursuant 3 to 28 U.S.C. § 2254, which authorizes habeas relief for persons 4 in custody pursuant to the judgment of a state court; however, 5 due to the pretrial stage of the state court proceedings, there 6 was no state court judgment to which the custody referred. 7 The Court adopted the findings and recommendations, and the 8 action was dismissed. 9 order filed on December 10, 2009, the judgment of dismissal was 10 summarily vacated, and the case was remanded to allow the Court 11 to consider Petitioner’s previously filed objections to the 12 findings and recommendations and to enter a new order. 13 1, 2010, the Magistrate Judge vacated the findings and 14 recommendations. 15 assigned to the undersigned Magistrate Judge. Petitioner appealed the judgment. (Doc. 21.)1 By On April On April 14, 2010, the action was 16 On June 29, 2010, the Court issued an order construing the 17 petition as one pursuant to 28 U.S.C. § 2241 because Petitioner 18 was challenging state action during the time that he was a 19 pretrial detainee, and thus Petitioner was not in custody 20 “pursuant to the judgment of a State court” at the time the 21 petition was filed as provided for by 28 U.S.C. § 2254(a) 22 and(b)(1). 23 petition to proceed pursuant to 28 U.S.C. § 2241. 24 2254, 2241; Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004). 25 In such circumstances, it is appropriate for the 28 U.S.C. §§ On June 29, 2010, this Court issued an order in which the 26 27 28 1 By separate order, the Court has set forth findings and recommendations concerning Petitioner’s motions for release. 2 1 Court took judicial notice of records of state court proceedings 2 and set forth an analysis of the pertinent legal principles 3 concerning mootness and the mootness of Petitioner’s claim. 4 Court directed Petitioner to show cause in thirty days why the 5 action should not be dismissed as moot. 6 served on Petitioner on June 29, 2010, Petitioner did not file a 7 response until after the period for response had passed. 8 However, the Court has considered the untimely response to the 9 order to show cause that was filed on August 16, 2010. The Although the order was 10 II. 11 A state pretrial detainee may raise a claim concerning the Mootness of Petitioner’s Claim 12 constitutionality of pretrial delay pursuant to 28 U.S.C. § 2241 13 because he is not in custody pursuant to the judgment of a state 14 court within the meaning of § 2254. 15 822, 824 n. 1 (9th Cir. 2003) (pretrial delay concerning right to 16 speedy trial). 17 McNeely v. Blanas, 336 F.3d Although a claim concerning an arbitrary denial or 18 revocation of bail may be raised in a proceeding for habeas 19 relief, Atkins v. People of State of Michigan, 644 F.2d 543, 549- 20 50 (6th Cir. 1981), it is nevertheless established that a claim 21 concerning the constitutionality of pretrial detention procedures 22 is moot after conviction of the offense because after conviction, 23 such a claim refers to a “prior detention” and thus is moot. 24 Barker v. Estelle, 913 F.2d 1433, 1440 (9th Cir. 1990). 25 The Court may take judicial notice of court records. Fed. 26 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 27 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 28 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). 3 1 The Court takes judicial notice of supplemental exhibits 11 2 through 14 in support of the petition for writ of habeas corpus 3 and emergency motion for appointment of counsel (doc. 5) filed on 4 May 15, 2009, in a case then pending in this district, Fordjour 5 v. Napolitano, no. CIV S-09-1800 JAM EFB P. 6 that these documents were filed by Petitioner in support of a 7 petition for writ of habeas corpus in which Petitioner challenged 8 his detention by the Immigration and Naturalization Service 9 (INS). 10 The docket reflects This Court has reviewed pages 57 through 59 of document 5 11 from the docket of that case, comprising attachment D, which 12 appears to be a certified copy of an abstract of judgment and 13 prison commitment from the Kings County Superior Court, recording 14 Petitioner’s conviction pursuant to a plea on February 20, 2009, 15 of a violation of Cal. Pen. Code § 69, obstructing and resisting 16 an executive officer, for which Petitioner was sentenced to a 17 term of sixteen months in prison. 18 filed in the state court case and minute orders of the state 19 court proceedings relating to Petitioner’s plea and sentencing 20 follow the abstract of judgment. 21 Id. at 58. The information Id. at 60-67. It thus appears that because Petitioner has been convicted 22 of and sentenced with respect to an offense with which he was 23 charged during the allegedly unlawful pretrial detention, 24 Petitioner’s claim concerning the detention is moot. 25 In the response to the order to show cause, Petitioner 26 asserts that he exhausted his state court remedies. 27 exhaustion of state remedies does not cure mootness. 28 also asserts that he is still on parole. 4 However, Petitioner However, even if 1 Petitioner is on parole following the conviction in question, 2 such custody is based on the conviction that followed the 3 detention of which Petitioner complains in this action, and not 4 custody caused by the pretrial detention. 5 forth, conviction renders a petition based on pretrial detention 6 moot. 7 As the Court has set It is established that a petitioner in a habeas corpus 8 proceeding pursuant to 28 U.S.C. § 2254 must be in custody, and 9 the petitioner must present a case or controversy within the 10 meaning of Article III, § 2, such that the party maintains a 11 personal stake in the outcome of the lawsuit. 12 523 U.S. 1, 7 (1998). Federal courts lack jurisdiction to decide 13 cases that are moot because the courts’ constitutional authority 14 extends to only actual cases or controversies. Iron Arrow Honor 15 Society v. Heckler, 464 U.S. 67, 70-71 (1983). Article III 16 requires a case or controversy in which a litigant has a personal 17 stake in the outcome of the suit throughout all stages of federal 18 judicial proceedings and has suffered some actual injury that can 19 be redressed by a favorable judicial decision. 20 for writ of habeas corpus becomes moot when it no longer presents 21 a case or controversy under Article III, § 2 of the Constitution. 22 Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003). 23 for writ of habeas corpus is moot where a petitioner’s claim for 24 relief cannot be redressed by a favorable decision of the court 25 issuing a writ of habeas corpus. 26 996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 27 1, 7 (1998)). 28 Union High School District, 228 F.3d 1092, 1098-99 (9th Cir. Spencer v. Kemna, Id. A petition A petition Burnett v. Lampert, 432 F.3d Mootness is jurisdictional. See, Cole v. Oroville 5 1 2000). 2 remains before the Court to be remedied. 3 U.S. 1, 18 (1998). 4 5 Thus, a moot petition must be dismissed because nothing Spencer v. Kemna, 523 The Court concludes that because Petitioner’s claim is moot, the petition for habeas corpus should be dismissed. 6 III. 7 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 8 appealability, an appeal may not be taken to the court of appeals 9 from the final order in a habeas proceeding in which the 10 detention complained of arises out of process issued by a state 11 court. 12 U.S. 322, 336 (2003). 13 certificate of appealability when it enters a final order adverse 14 to the applicant. 15 Cases. 16 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A district court must issue or deny a Rule 11(a) of the Rules Governing Section 2254 It has not been decided by the United States Court of 17 Appeals for the Ninth Circuit whether or not a certificate of 18 appealability is required for a pretrial detainee who proceeds 19 pursuant to § 2241, but in some circuits it has been held that a 20 certificate is required. 21 10 (9th Cir. 2003). 22 546, 554-55 (9th Cir. 2010), it was held that a certificate was 23 required for a state parolee proceeding pursuant to § 2254 and 24 challenging an administrative decision to deny parole. 25 concluded that 28 U.S.C. § 2253(c)(1)(A), which requires a 26 certificate in order to appeal from an order in a proceeding in 27 which “the detention complained of arises out of process issued 28 by a State court,” is best read to mean that a state prisoner McNeely v. Blanas, 336 F.3d 822, 832 n. Further, in Hayward v. Marshall, 603 F.3d 6 The court 1 seeking to appeal the denial of a petition for a writ of habeas 2 corpus to a federal court of appeals must get a certificate of 3 appealability. Id. at 554. 4 Therefore, in an exercise of caution, the Court will 5 consider whether to issue a certificate of appealability. 6 A certificate of appealability may issue only if the 7 applicant makes a substantial showing of the denial of a 8 constitutional right. 9 petitioner must show that reasonable jurists could debate whether § 2253(c)(2). Under this standard, a 10 the petition should have been resolved in a different manner or 11 that the issues presented were adequate to deserve encouragement 12 to proceed further. 13 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 14 certificate should issue if the Petitioner shows that jurists of 15 reason would find it debatable whether the petition states a 16 valid claim of the denial of a constitutional right and that 17 jurists of reason would find it debatable whether the district 18 court was correct in any procedural ruling. 19 529 U.S. 473, 483-84 (2000). 20 conducts an overview of the claims in the habeas petition, 21 generally assesses their merits, and determines whether the 22 resolution was debatable among jurists of reason or wrong. 23 It is necessary for an applicant to show more than an absence of 24 frivolity or the existence of mere good faith; however, it is not 25 necessary for an applicant to show that the appeal will succeed. 26 Miller-El v. Cockrell, 537 U.S. at 338. 27 28 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a 7 Id. 1 different manner. 2 of the denial of a constitutional right. 3 recommended that the Court decline issue a certificate of 4 appealability. Petitioner has not made a substantial showing Accordingly, it will be 5 IV. Recommendations 6 Accordingly, it is RECOMMENDED that: 7 1) The petition be DISMISSED as moot; and 8 2) The Court DECLINE to issue a certificate of 9 appealability; and 10 3) 11 These findings and recommendations are submitted to the 12 United States District Court Judge assigned to the case, pursuant 13 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 14 the Local Rules of Practice for the United States District Court, 15 Eastern District of California. 16 being served with a copy, any party may file written objections 17 with the Court and serve a copy on all parties. 18 should be captioned “Objections to Magistrate Judge’s Findings 19 and Recommendations.” 20 and filed within fourteen (14) days (plus three (3) days if 21 served by mail) after service of the objections. 22 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 23 636 (b)(1)(C). 24 objections within the specified time may waive the right to 25 /// 26 /// 27 /// 28 /// The Clerk be DIRECTED to close the action. Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file 8 1 appeal the District Court’s order. 2 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 3 4 IT IS SO ORDERED. 5 Dated: ie14hj September 2, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9