(HC) McBrien v. On Habeas Corpus, No. 1:2010cv00742 - Document 24 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the 1 Petition for Writ of Habeas Corpus be Dismissed as Frivolous and that all Motions Accompanying the Petition be Dismissed as Moot signed by Magistrate Judge Michael J. Seng on 12/7/2010. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/10/2011. (Sant Agata, S)
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(HC) McBrien v. On Habeas Corpus Doc. 24 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 KAREN MCBRIEN, 13 Petitioner, 14 v. 15 16 Warden, Respondent. 17 ) ) ) ) ) ) ) ) ) ) ) 1:10-cv-00742 LJO MJS HC FINDINGS AND RECOMMENDATION TO SUMMARILY DENY PETITION FOR WRIT OF HABEAS CORPUS AS FRIVOLOUS (Doc. 1) 18 Petitioner alleges that she is in the custody of the United States and she here seeks to 19 20 proceed pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 21 I. PROCEDURAL HISTORY 22 Petitioner filed the instant federal petition on April 27, 2010. (Pet., ECF No. 1.) 23 According to the petition, Petitioner is challenging a "lethal finding" issued against Petitioner; 24 she claims that the "lethal finding" occurred without notification, a hearing, or the ability to 25 examine the record. (Id., p. 1) It does not appear from the petition that Petitioner is currently 26 incarcerated or otherwise held in custody by a state or federal government.(Id.) 27 28 Petitioner's "claims," to the extent that they can be so characterized, are vague, unclear, and, though possibly real to her, patently incredible. U .S. D istrict C ourt E. D . C alifornia -1Dockets.Justia.com 1 Ground one alleges the following: 2 42 U.S.C. § 1983 civil rights violations with brain implant without knowledge or consent for restriction on liberty. I do not know who or which doctor implanted a brain device for monitoring of me by FBI, DHS, police, sheriffs and others, my neurologist Martha Morrell invented a patent for a brain device. Law enforcement surveillance stimulate it to cause brain death due to ADEPA act with false allegations. (Pet., p. 3.) 3 4 5 Ground two alleges as follows: 6 8 False Allegations. Adversarial relatives, law enforcement, private security contractor such as Securitas, made serious false allegations, implicating me as a terrorist and enemy combatant, which I have never been. Also, they implicated that I had a bomb in my cases of legal documents, as part of a hoax. (Id.) 9 As discussed, the Court determines that Petitioner's claims are patently incredible and, 7 10 thus, that this petition should be summarily denied on the merits. 11 II. DISCUSSION 12 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a 13 preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition 14 "[i]f it plainly appears from the face of the petition…that the petition is not entitled to relief." 15 Rule 4 of the Rules Governing 2254 Cases. Summary dismissal is appropriate only where the 16 allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or 17 false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 18 431 U.S. 63, 75-76, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977)). Under § 2243, it is the duty of 19 the Court to screen out frivolous applications and to eliminate the burden that would be placed 20 on the respondent by ordering an unnecessary answer. Allen v. Perini, 424 F.2d 134, 141 (6th 21 Cir. 1970); see Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 22 Cases. The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition 23 for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's 24 motion to dismiss, or after an answer to the petition has been filed. 25 Habeas corpus petitions must meet heightened pleading requirements. McFarland v. 26 Scott, 512 U.S. 849, 856, 114 S. Ct. 2568, 129 L. Ed. 2d 666 (1994); Hendricks, 908 F.2d at 27 491. The Petitioner must set forth in summary from the facts supporting each of the grounds 28 specified and shall state the relief requested. Rule 4 of the Rules Governing Section 2254 U .S. D istrict C ourt E. D . C alifornia -2- 1 Cases. As mentioned above, a petition may be dismissed if the factual allegations are so 2 palpably incredible or so patently frivolous or false as to warrant summary dismissal. 3 Blackledge, 431 U.S. at 78. A claim is legally frivolous when it lacks an arguable basis either 4 in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 5 (1989). The Court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. 7 Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however, 8 inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 9 639, 640 (9th Cir. 1989). 10 Petitioner claims that the United States and other actors have implanted a device in her 11 brain, and that some manner of "lethal finding" has been made against her. Petitioner has 12 produced nothing to indicate that the United States has taken any action against her or that 13 she has been the subject of an investigation or convicted of a crime. The facts alleged in the 14 petition appear to arise from fantasy and delusion. The petition is frivolous and must be 15 dismissed. Neitzke, 490 U.S. at 327-28. 16 Moreover, Petitioner is not incarcerated, subject to probation or parole, or otherwise 17 subject to significant restraint on her freedom. She can not be said to be in custody under 28 18 U.S.C. § 2241(c)(3). See, e.g., Lehman v. Lycoming Cnty. Children's Servs. Agency, 458 U.S. 19 502, 508-510 (1982), and thus she is not entitled to habeas corpus relief. 20 III. RECOMMENDATION 21 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 22 DISMISSED as frivolous. The Court further RECOMMENDS that all motions accompanying 23 the petition be DISMISSED as moot. 24 This Findings and Recommendation is submitted to the assigned United States District 25 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 26 Local Rules of Practice for the United States District Court, Eastern District of California. 27 Within thirty (30) days after the date of service of this Findings and Recommendation, any 28 party may file written objections with the Court and serve a copy on all parties. Such a U .S. D istrict C ourt E. D . C alifornia -3- 1 document should be captioned “Objections to Magistrate Judge’s Findings and 2 Recommendation.” Replies to the Objections shall be served and filed within fourteen (14) 3 days after service of the Objections. The Finding and Recommendation will then be submitted 4 to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 5 (b)(1)(c). The parties are advised that failure to file objections within the specified time may 6 waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th 7 Cir. 1991). 8 9 10 IT IS SO ORDERED. 11 Dated: ci4d6 December 7, 2010 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia -4-