(HC)Johnson v. United States of America et al, No. 2:2007cv02387 - Document 9 (E.D. Cal. 2009)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/17/09 ORDERING that the petitioner's 8 application to proceed IFP is GRANTED; RECOMMENDING that the application for writ of habeas corpus be dismissed; this action be closed; objections due within 20 days of being served these findings and recommendations. (Gaydosh, J) Modified on 8/13/2009 (Engbretson, K.).
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(HC)Johnson v. United States of America et al Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LAVELL RONDELL JOHNSON, Petitioner, 11 12 13 14 No. CIV S-07-2387 LKK DAD P vs. UNITED STATES OF AMERICA et al., Respondents. ORDER AND FINDINGS AND RECOMMENDATIONS / 15 16 Petitioner, a former federal prisoner proceeding pro se, has filed an application for 17 a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with the court’s October 14, 18 2008 order, petitioner has filed an application to proceed in forma pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable 20 to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be 21 granted. See 28 U.S.C. § 1915(a)(1). 22 23 PRELIMINARY SCREENING A court entertaining an application for a writ of habeas corpus must award the 24 writ or direct the respondent to show cause as to why the writ should not be granted, “unless it 25 appears from the application that the applicant or the person detained is not entitled thereto.” 28 26 U.S.C. § 2243. For the reasons discussed below, summary dismissal is proper in this case. 1 Dockets.Justia.com BACKGROUND 1 In 1985, petitioner was charged in the United States District Court for the 2 3 Northern District of California and entered pleas of guilty to one count of armed bank robbery 4 and one count of possession of a firearm during the commission of a crime of violence. (Pet. at 2 5 & Attach.) Petitioner was sentenced to twenty years in federal prison for the bank robbery and 6 five years on the weapons charge. Petitioner was released from federal prison on parole in 2002. 7 (Id., Attach.) On March 12, 2004, the United States Parole Commission issued a warrant for 8 9 petitioner’s arrest. The warrant stated that on January 3, 2002, petitioner had been released from 10 the United States Penitentiary at Leavenworth in accordance with the mandatory release with 11 good time deductions provision of 18 U.S.C. § 4163, with 3,745 days remaining to be served. 12 The warrant further stated that the United States Parole Commission had received reliable 13 information since his release that petitioner had violated one or more of the conditions of his 14 release. (Pet. Attach. at 30 of 35.) In his petition before this court, petitioner claims that the United States Parole 15 16 Commission had no jurisdiction to detain him or revoke his parole. In addition, petitioner claims 17 United States Parole Commission’s warrant was invalid on its face and that he was illegally 18 detained pursuant thereto.1 Petitioner also claims in vague fashion that the United States Parole 19 Commission and the United States Probation Department are “engaging petitioner in an unfair 20 deceptive practice by using old law and new law together.” (Pet. at 6.) Finally, petitioner claims 21 that his alleged violation of the warrant and subsequent detention resulted in his false 22 imprisonment. (Id.) Petitioner requests unconditional release. (Pet. at 6 & Attach.) 23 ///// 24 ///// 25 1 26 At the time this petition was filed petitioner was detained at the Sacramento County Main Jail. Petitioner is no longer incarcerated. 2 ANALYSIS 1 The instant petition should be dismissed because it is an abuse of the writ. 2 3 Petitions brought pursuant to 28 U.S.C. § 2241 are subject to the limitations set forth in 28 4 U.S.C. § 2244(a). In part, that statute provides: No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus [.] 5 6 7 8 9 28 U.S.C. 2244(a).2 In this case, petitioner raises claims that he has previously raised in a § 2241 10 11 petition. Specifically, on May 3, 2004, petitioner filed a petition for writ of habeas corpus 12 pursuant to 28 U.S.C. § 2241 in the United States District Court for the Central District of 13 California. See Case No. CIV 2:04-3103 RSWL RC (C.D. Cal.). Therein, he claimed that the 14 United States Parole Commission had no jurisdiction to detain him or revoke his parole. In 15 addition, he claimed that he was being detained illegally based on an invalid warrant. He also 16 argued in vague fashion that the Commission and the United States Probation Department were 17 engaged in unfair and deceptive practices by using the old law and the law together. Id., Findings 18 and Recommendations filed Nov. 23, 2004. The United States District Court for the Central 19 District of California denied petitioner relief on the merits of his petition and dismissed the 20 action with prejudice. Id., Order filed Nov. 23, 2004. Section 2244(a) bars petitioner from bringing this successive § 2241 petition 21 22 because he raises the same claims that the United States District Court for the Central District 23 rejected in his previous action challenging the execution of his sentence. See Barapind, 225 F.3d 24 25 26 2 Petitions brought pursuant to 28 U.S.C. § 2241, however, are not subject to the rule in 28 U.S.C. § 2244(b), requiring appellate certification for second or successive petitions. Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000). 3 1 at 1111 (§ 2244(a) prevents a federal prisoner from bringing a § 2241 petition to challenge the 2 validity of a conviction or sentence that has already been subject to collateral review); see also 3 Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (district court properly dismissed § 2241 4 petition because the issues raised therein had been, or could have been, decided in previous § 5 2241 habeas action); Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998) (“§ 2244(a) bars 6 successive petitions under § 2241 directed to the same issue concerning execution of a 7 sentence”). Accordingly, petitioner is not entitled to relief, and this habeas action should be 8 dismissed. CONCLUSION 9 IT IS HEREBY ORDERED that petitioner’s October 27, 2008 application to 10 11 proceed in forma pauperis (Doc. No. 8) is granted; and 12 IT IS HEREBY RECOMMENDED that: 13 1. Petitioner’s application for writ of habeas corpus be dismissed; and 14 2. This action be closed. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 17 days after being served with these findings and recommendations, petitioner may file written 18 objections with the court. The document should be captioned “Objections to Magistrate Judge's 19 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 20 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 21 F.2d 1153 (9th Cir. 1991). 22 DATED: April 17, 2009. 23 24 25 DAD:9 john2387.156 26 4
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