Devin Michael Smith v. Warden

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 DEVIN MICHAEL SMITH, Case No. 5:20-cv-00729-DSF (AFM) 12 Petitioner, ORDER SUMMARILY 13 v. DISMISSING PETITION FOR 14 WARDEN, WRIT OF HABEAS CORPUS ( 28 U.S.C. § 2254 ) 15 Respondent. [16] On April 9, 2020, Petitioner, who is currently in the Metropolitan State [17] Hospital undergoing competency proceedings, filed this petition for a writ of habeas [18] corpus pursuant to 28 U.S.C. § 2254 . As explained below, the petition is subject to [19] summary dismissal without prejudice. [20] PETITIONER’S ALLEGATIONS [21] According to Petitioner, beginning January 2017, someone initiated an attack [22] upon him using electronic audio equipment. (ECF No. 1 at 1.) Since that time, an [23] “audio communications and bio-technology operator is using technology to harass [24] [Petitioner] and conduct unauthorized psycho-analyst research.” (ECF No. 1 at 10.) [25] This research is being “conducted by an unknown source that uses technology to play [26] audio messages 24 hours a day and 7 days a week and collects feedback.” (ECF No. [27] 1 at 10.) [28] 1 Plaintiff was arrested in September 2017 based upon alleged violations of 2 California Penal Code sections 459(burglary), 29800(a)(1)(possession of firearm by 3 felon or person addicted to the use of any narcotic drug), and 594(b)(1) (vandalism). 4 (ECF No. 1 at 15.) Petitioner informed his appointed counsel about the electronic 5 harassment and asked counsel to enlist a scientific expert to use in the legal action, 6 but counsel refused. When Petitioner sought to remove appointed counsel and 7 proceed pro se, counsel raised a doubt about Petitioner’s competency. (ECF No. 1 at 8 15.) 9 In October 2019, Petitioner was placed in Metropolitan State Hospital for 10 purposes of competency review.(ECF No. 1 at 9-10.)Since his arrival, Petitioner has 11 informed hospital staff and doctors about the electronic harassment, but they have 12 refused to seriously investigate Petitioner’s complaints. (ECF No. 1 at 9-10.) 13 Petitioner sought to file a police report to complain about the electronic harassment 14 and unauthorized psycho-surgery using nano-technology. Hospital staff told 15 Petitioner to talk to the police. Petitioner contacted a police officer who was doing 16 his rounds on the unit, but the officer refused to open an investigation. Petitioner has 17 been unable to contact the police department to file a report. (ECF No. 1 at 11.) 18 Petitioner was originally housed in one unit, but subsequently transferred to 19 another. Prior to the transfer, Petitioner placed all of his belongings into pillowcases. 20 When his pillowcases were returned to him, several items were missing, including 21 hygiene products, food, and $1.75 in quarters. (ECF No. 1 at 16.) 22 GROUNDS FOR RELIEF 23 The petition alleges the following grounds for relief: (1) Metropolitan State 24 Hospital is failing to provide him with adequate medical care because the doctors 25 have refused to remove nano-technology particles from his body; (2) staff at 26 Metropolitan State Hospital are not taking the appropriate action to stop unauthorized 27 psycho-analyst research; (3) hospital staff have obstructed due process by failing to 28 assist Petitioner in his attempts to make a police report complaining about electronic 1 harassment; (4) Metropolitan State Hospital is not taking the appropriate action to 2 stop unauthorized psycho-surgery; (5) Metropolitan State Hospital has not provided 3 Petitioner with adequate access to the law library; (6) Metropolitan State Hospital 4 policy does not permit use of a writing instrument for more than 15 minutes, making 5 it difficult to complete legal paperwork; (7) Petitioner’s appointed counsel provided 6 ineffective assistance by refusing to obtain an expert, declaring a doubt as to 7 Petitioner’s competency, and failing to respond to Petitioner’s correspondence or 8 calls; (8) Metropolitan State Hospital employees unreasonably searched and seized 9 Petitioner’s property. (ECF No. 1 at 9-16.) 10 DISCUSSION 11 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 12 Courts provides that “[i]f it plainly appears from the face of the petition ... that the 13 petitioner is not entitled to relief in the district court,” the judge must dismiss the 14 petition and direct the clerk to notify the petitioner. See also Hendricks v. Vasquez, [15] 908 F.2d 490, 491 (9th Cir. 1990). For the following reasons, the petition is subject 16 to summary dismissal. 17 A habeas corpus action necessarily entails a challenge to either a conviction or 18 a sentence imposed by a state court judgment. See 28 U.S.C. § 2254 (a federal court 19 “shall entertain an application for a writ of habeas corpus in behalf of a person in 20 custody pursuant to the judgment of a State court only on the ground that he is in 21 custody in violation of the Constitution or laws or treaties of the United States”); 22 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). When success on a petitioner’s 23 claims “would not necessarily lead to his immediate or earlier release from 24 confinement,” those claims do not fall within the “core of habeas corpus.” Nettles v. 25 Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc). Further, if a claim does not lie 26 at “the core of habeas corpus,” then “it may not be brought in habeas corpus.” Nettles, [27] 830 F.3d at 931, 934 . 28 Petitioner’s complaints about the adequacy of his medical treatment, limited 1 access to the law library and a writing instrument, and deprivation of property 2 challenge only the conditions of his confinement. They have no bearing on the 3 validity or length of his confinement. The same is true of Petitioner’s complaint that 4 he has been unable to file a police report. None of these claims, if successful, would 5 affect the validity or length of his current confinement. Consequently, they may not 6 be raised in a habeas corpus petition. See Nettles, 830 F.3d at 934-935 (petitioner’s 7 claim challenging disciplinary violation and seeking expungement was not 8 cognizable in habeas corpus action because success on the merits of the claim would 9 not necessarily entitle the petitioner to parole); In re Armstead, 2010 WL 2991525 , 10 at *1 (C.D. Cal. July 27, 2010) (summary dismissal appropriate where petitioner did 11 not challenge a conviction or sentence). Based upon the foregoing, Petitioner’s 12 claims are dismissed without prejudice to him raising them in a civil rights action.1 13 To the extent that Petitioner’s claim of ineffective assistance of counsel might 14 be construed as related to the fact of his current custody, federal court consideration 15 of his claim is inappropriate at this time because Petitioner’s state court proceedings 16 are pending. Brown v. Ahern, 676 F.3d 899, 900 (9th Cir. 2012) (“Fundamental 17 principles of comity and federalism prohibit the federal courts from enjoining 18 ongoing state proceedings except under ‘extraordinary circumstances.’”) (quoting 19 Younger v. Harris, 401 U.S. 37, 45 (1971)); see also Hoye v. City of Oakland, 653 20 F.3d 835 , 843 n.5 (9th Cir. 2011) (thelongstanding public policy against federal court 21 interference with pending state court proceedings is sufficiently important that 22 federal courts may raise abstention sua sponte). Thus, to the extent that any of 23 Petitioner’s claims might relate to the criminal proceedings against him, they are 24 dismissed without prejudice to its refiling after Petitioner’s state criminal 25 proceedings (including his direct appeal) are completed and his federal claims have 26 been properly presented to the California courts. [27] 28 1 The Court expresses no opinion as to the viability or merits of any suchaction. 1 Finally, although this Court may, after obtaining informed consent from a 2 || prisoner, recharacterize a mislabeled habeas corpus petition as a civil rights 3 || complaint, see Nettles, 830 F.3d at 935-936 , the Court declines to do so here. A 4 || “habeas corpus action and a prisoner civil rights suit differ in a variety of respects — 5 || such as the proper defendant, filing fees, the means of collecting them, and 6 || restrictions on future filings — that may make recharacterization impossible or, if 7 || possible, disadvantageous to the prisoner compared to a dismissal without prejudice 8 || of his petition for habeas corpus.” Nettles, 830 F.3d at 936 . Here, it is not clear 9 || whether the petition names the “correct defendants” or seeks the “correct □□□□□□□□ See 10 || Nettles, 830 F.3d at 936 . In addition, the congressionally mandated filing fee for a 11 || prisoner civil rights complaint is currently $350 (plus a $50 administrative fee), 12 || whereas the fee for a habeas petition is $5. See 28 U.S.C. § 1914 (a). While a civil 13 || rights action may proceed despite the prisoner’s inability to prepay the entire $350 if 14 || he is granted leave to proceed in forma pauperis under 28 U.S.C. § 1915 (a), he must 15 || still agree to pay the entire filing fee in installments, even if his complaint is 16 || ultimately dismissed. See 28 U.S.C. § 1915 (b)(1) & (2); Taylor v. Delatoore, 281 17 || F.3d 844, 847 (9th Cir. 2002). In these circumstances, conversion of the petition into 18 || a civil rights complaint is not appropriate. See Jorgenson v. Spearman, 2016 WL 19 || 2996942, at *1 (C.D. Cal. May 22, 2016). 20 Ok 21 For the foregoing reasons, IT IS ORDERED that this action be summarily 22 || dismissed without prejudice pursuant to Rule 4. [23] 24 I + a5 || Date: April 14, 2020 hoe A. _j)crcAwrr Dale S. Fischer 26 United States District Judge