Nie v. Lynch

FILED AU6132015 Clerk, U.S. District and Bankruptcy Courts UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Harry Nie, Plaintiff: Case: 1:15—cv-01312 Assigned To : Unassigned Assign. Date : 8/13/2015 Description: Pro Se Gen. Civil Honorable Loretta Lynch et al., vvvvvvvvvv Defendants. MEMORANDUM OPINION Plaintiff, proceeding pro se, is a Virginia state prisoner incarcerated in Mitchells, Virginia. He has submitted a complaint that essentially challenges his conviction. The Court will grant the accompanying application to proceed in forma pauperis and will dismiss the case for lack of jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring dismissal of an action “at any time” the Court determines that it lacks subject matter jurisdiction). Federal court review of a sentence imposed by a state court is available under 28 U.S.C. § 2254 after the exhaustion of state remedies. See 28 U.S.C. §2254 (b)(1). Thereafter, “an application for a writ of habeas corpus [] made by a person in custody under the judgment and sentence of a State court . . . may be filed in the district court for the district wherein such person is in custody or in the district court for the district [where the sentencing court sits] and each of such district courts shall have concurrent jurisdiction to entertain the application.” 28 U.S.C. § 2241 (d). Plaintiff’s recourse in habeas lies, if at all, in an appropriate court in Virginia. See Williams v. Hill, 74 F.3d 1339, 1340 (DC. Cir. 1996) (finding it “well-settled that a prisoner [03] seeking relief from his conviction or sentence may not bring [ ] an action” for injunctive and declaratory relief) (citations omitted). This Court also lacks jurisdiction to the extent that plaintiff is seeking review of the decisions of the US. Supreme Court and the state and federal courts in Virginia ( Compl. at 2, 417). See In re Marin, 956 F.2d 339, 340 (DC. Cir. 1992); accord Panko v. Rodak, 606 F.2d 168 , 171 n.6 (7th Cir. 1979), cert. denied, 444 US. 1081 (1980) (“It seems axiomatic that a lower court may not order the judges or officers of a higher court to take an action”). See also United States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C. 2011) (district courts “generally lack[] appellate jurisdiction over other judicial bodies, and cannot exercise appellate mandamus over other courts”) (citing Lewis v. Green, 629 F. Supp. 546, 553 (D.D.C.1986)); Fleming v. United States, 847 F. Supp. 170, 172 (D.D.C. 1994), cert. denied 513 US. 1150 (1995) (applying District of Columbia Court oprpeals v. Feldman, 460 US. 462, 482 (1983); Rocker v. Fidelity Trust Co, 263 US. 413, 415, 416 (1923)). Finally, plaintiff sues both Virginia’s Governor and Attorney General in their official capacities, see Compl. Caption, which “in all respects other than name, [is] to be treated as a suit against the entity [state of Virginia].” Kentucky v. Graham, 473 US. 159, 166 (1985). The Eleventh Amendment to the US. Constitution immunizes a state from suit in federal court, unless immunity is waived.1 Plaintiff has not cited any authority waiving Virginia’s immunity. 1 The amendment provides in pertinent part: "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." US. Const. amend. XI. It is long established that this amendment applies equally to suits brought by citizens against their own states. See Edelman v. Jordan, 415 US. 651, 662-63 (1974); Hans v. Louisiana, 134 US. 1, 13-15 (1890). Similarly, plaintiff sues Attorney General Loretta Lynch in her official capacity but has cited no federal authority waiving sovereign immunity. See Lane v. Pena, 518 US. 187, 192 (1996) (the United States may be sued only upon consent “unequivocally expressed in statutory text”). For the foregoing reasons, this case will be dismissed. A separate Order accompanies this Memorandum Opinion. DATE: August, 2015 United States District Judgg