Peterson v. Hinds

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 CARY LEE PETERSON, Case No. 21-cv-07556-EMC 8 Plaintiff, ORDER OF DISMISSAL 9 v. Docket Nos. 2, 4, 9, 12 10 STEPHANIE HINDS, 11 Defendant. [13] 14 On December 20, 2018, the United States District Court for the District of New Jersey 15 (“District of New Jersey”) sentenced Cary Lee Peterson to 52 months imprisonment as 16 punishment for multiple crimes of “fraud, false certifications, false documents” and 17 “misrepresentation.” Docket No. 1-1 at 17-261 (transcript of hearing regarding bail); see also 18 Docket No. 1 at 4 (summarizing Mr. Peterson’s sentence). 19 Mr. Peterson has filed a petition for writ of habeas corpus (“Petition”), which is now 20 before the Court for review pursuant to 28 U.S.C. § 2243 . At the time that he filed the Petition, 21 Mr. Peterson was confined to his home “via electronic ankle monitoring device [with] multiple 22 daily call-ins to [a] halfway house.” Docket No. 1 (“Petition”) at 1. 23 Mr. Peterson also has filed multiple baseless and/or unintelligible motions. See Docket 24 Nos. 2, 4, 9, 12. 25 For the reasons given below, Mr. Peterson’s motions are DENIED and the Petition is 26 DISMISSED. [27] 1 I. STANDARD OF REVIEW 2 Section 2241 allows “the Supreme Court, any justice thereof, the district courts and any 3 circuit judge” to grant writs of habeas corpus “within their respective jurisdictions.” 28 U.S.C. 4 § 2241(a). A district court shall “award the writ or issue an order directing the respondent to 5 show cause why the writ should not be granted, unless it appears from the application that the 6 applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243 . Summary dismissal is 7 appropriate where the allegations in the petition are vague or conclusory, palpably incredible, or 8 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting 9 Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)). 10 II. ANALYSIS OF PETITION 11 The Petition states four claims: Mr. Peterson argues that the BOP held him too long in an 12 institution before moving him to home confinement; that his identity documents were confiscated 13 and not returned; that an Assistant United States Attorney for the Northern District of California 14 (“AUSA”) is not sufficiently helpful; and that the District of New Jersey failed to resolve a 15 disputed fact in Mr. Peterson’s presentence report. See Pet. at 7-8. The first three claims are not 16 cognizable in a habeas action, and the fourth should be heard in the District of New Jersey. 17 A. Claim 1: Home Confinement 18 Mr. Peterson’s first claim, regarding home confinement, is not cognizable. 19 Mr. Peterson argues that the Bureau of Prisons (“BOP”) was obligated to release him to 20 home confinement earlier than it did. See Pet. at 6-7. However, the statute on which Mr. Peterson 21 relies directs the Bureau of Prisons (“BOP”) only “to the extent practicable, [to] place prisoners 22 with lower risk levels and lower needs on home confinement.” 18 U.S.C. § 3624 (c)(2) (emphasis 23 added). This is not mandatory language; rather, it grants to BOP discretion as to what is 24 “practicable.” As the Ninth Circuit has previously explained, because the BOP’s decisions with 25 regard to home confinement are discretionary, they are not amenable to challenge in a habeas 26 petition. See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011); see also Koliopoulos v. 27 Copenhaver, 464 F. App’x 641, 642 (9th Cir. 2011) (citing Reeb, 636 F.3d at 1227 for the 1 under 18 U.S.C. §§ 3621–24”); Cruz v. Jenkins, No. 20-CV-03891-LHK, 2020 WL 6822884 , at 2 *3 (N.D. Cal. Nov. 20, 2020) (same). Under this precedent, Claim 1 is not cognizable. 3 In addition, this claim was moot even before the Petition was filed. Mr. Peterson concedes 4 that he was “release[d] from custodial custody on 7/27/2021.” Docket No. 2 at 2. The Petition 5 was filed on or after September 27, 2021. See Pet. at 9 (dated by Mr. Peterson); see also Houston 6 v. Lack, 487 U.S. 266, 270-71 (1988) (announcing the prison mailbox rule). Even if the BOP’s 7 decision to delay placing a prisoner on home confinement were reviewable, this Court could not 8 remedy the delay because Mr. Peterson was already on home confinement when he filed the 9 Petition. 10 This claim is therefore DISMISSED with prejudice. 11 B. Claim 2: Identifying Documents 12 Mr. Peterson’s second claim, regarding the confiscation of his identifying documents, does 13 not lie within the core of habeas. 14 Mr. Peterson states that he lacks “a DMV-issued state ID or [Driver’s License],” but does 15 not allege that these documents were taken as punishment for Mr. Peterson’s crimes. Cf. United 16 States v. Bajakajian, 524 U.S. 321, 334 (1998) (explaining that an in personam criminal forfeiture 17 constitutes punishment and is subject to the Eighth Amendment). Rather, these documents appear 18 to have been confiscated at the time of Mr. Peterson’s arrest. See Docket No. 1-1 at 8 (stating that 19 any property confiscated at the time of Mr. Peterson’s arrest was sent to the FBI in New Jersey). 20 Because this claim does not lie in habeas, it must be brought, if at all, in a civil rights action. 21 Moreover, Mr. Peterson appears to concede that these documents are in the custody of the 22 Department of Justice’s New Jersey office. See Pet. at 7 (conceding this “property [is] held by 23 DOJ-DNJ”). Thus, this claim is not even properly brought in this District, and should instead 24 proceed, if at all, in the District of New Jersey. 25 Mr. Peterson’s second claim is DISMISSED. Dismissal is without prejudice to Mr. 26 Peterson suing in the District of New Jersey for the return of his property. 27 C. Claim 3: AUSA Helpfulness 1 Mr. Peterson relies on 18 U.S.C. § 3631 (a), which states that “[t]he Attorney General shall 2 carry out this subchapter in consultation with” other agencies. See Pet. at 7 (citing 18 U.S.C. 3 § 3631(a)). He claims that this statute requires the AUSA to provide personal assistance to 4 prisoners seeking to reintegrate into the community. See id. However, the Attorney General’s 5 specific duties under § 3631 are enumerated in subsection (b), and involve researching, reviewing, 6 and preparing recommendations regarding BOP risk assessment systems and recidivism reduction 7 programs. See 18 U.S.C. § 3624 (b). Nothing in this statute requires the AUSA to provide 8 personal assistance to an individual prisoner. See id. 9 Moreover, even if the statute were to impose such an extraordinary requirement, Mr. 10 Peterson concedes that the AUSA communicated with the local FBI office in response to Mr. 11 Peterson’s property inquiry, learned that the local FBI office did not possess Mr. Peterson’s 12 property, informed Mr. Peterson of the same, and recommended that Mr. Peterson contact the FBI 13 in New Jersey. See generally, Pet. The AUSA thus did attempt to offer Mr. Peterson individual 14 assistance, although the AUSA was unable to resolve Mr. Peterson’s problems, despite not being 15 required to do so. 16 Because § 3631 does not require the AUSA to solve Mr. Peterson’s individual problems, 17 this claim is DISMISSED with prejudice. 18 D. Claim 4: Sentencing Procedures 19 Mr. Peterson’s fourth claim must be brought in the District of New Jersey. 20 Mr. Peterson challenges the procedures followed by the District of New Jersey during 21 sentencing, and contends that judicial errors caused sentencing enhancement(s) to be imposed in 22 error. See Pet. at 8. This is not a challenge to the execution of a federal sentence, which may 23 properly be filed as a petition under 28 U.S.C. § 1441 in the district of confinement, but is rather a 24 challenge to the sentence itself, which must be made in a motion to vacate, set aside, or correct the 25 sentence pursuant to 28 U.S.C. § 2255 . See, e.g., Reina-Rodriguez v. United States, 655 F.3d 26 1182, 1185 (9th Cir. 2011) (considering the denial of a “§ 2255 motion to correct a federal 27 sentencing enhancement”); United States v. Beierle, 77 F.3d 1199, 1199 (9th Cir. 1996) 1 petitioner’s sentence). 2 “[A] section 2255 motion may be brought only in the sentencing court . . . .” Tripati v. 3 Henman, 843 F.2d 1160, 1163 (9th Cir. 1988). Thus, because Mr. Peterson’s fourth claim 4 concerns an alleged sentencing error, this claim should proceed in the District of New Jersey. 5 Ordinarily, the Court would transfer Mr. Peterson’s claim to the proper venue. However, 6 Mr. Peterson appears already to have filed a § 2255 motion in the District of New Jersey. See 7 Peterson v. United States, Case No. 3:2021-cv-20685 (filed Dec. 23, 2021). Transfer thus appears 8 unnecessary in this instance. Mr. Peterson’s fourth claim is DISMISSED without prejudice to 9 raising this claim in Mr. Peterson’s pending habeas action in the District of New Jersey. 10 III. ANALYSIS OF PENDING MOTIONS 11 In addition to the Petition, Mr. Peterson filed multiple motions. The Court denies each 12 motion on the merits, or orders the Clerk to terminate it as moot. 13 Mr. Peterson’s “emergency motion for judicial notice of adjudicative facts” is DENIED. 14 What Mr. Peterson considers “adjudicative facts” are nothing of the kind. Instead, Mr. Peterson 15 provides several pages of argument regarding what he believes the Ninth Circuit has “conceded” 16 in various opinions. See, e.g., Docket No. 4 at 1-3. This is a matter of legal interpretation, rather 17 than adjudicative fact. See Fed. R. Evid. 201 (defining adjudicative facts). 18 Mr. Peterson’s “emergency motion for leave on motion for judicial notice of adjudicative 19 as to federal question . . . facts” is also DENIED. Docket No. 12. To the extent Mr. Peterson asks 20 the Court to take notice of so-called adjudicative facts on an emergency basis, as is suggested by 21 the title of this motion, the request fails for the reasons described above. To the extent Mr. 22 Peterson seeks recusal of the undersigned based on the undersigned’s employment with the 23 American Civil Liberties Union more than two decades ago, as suggested by the body of the 24 motion, see id. at 3, this request is denied. Mr. Peterson has not clearly explained why “‘the 25 probability of actual bias on the part of the judge or decisionmaker is too high to be 26 constitutionally tolerable.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009) (quoting 27 Withrow v. Larkin, 421 U.S. 35, 47 (1975)). 1 terminate the stipulation filed at Docket No. 2, the “emergency motion . . . for . . . expedited 2 review” filed at Docket No. 9, and the request to submit filings via email filed at Docket No. 12. 3 IV. CONCLUSION 4 For the foregoing reasons, the Petition is dismissed. Dismissal is with prejudice as to Mr. 5 Peterson’s first and third claims, but without prejudice as to Mr. Peterson’s second and fourth 6 claims. 7 A certificate of appealability will not issue. See 28 U.S.C. § 2253 (c). This is not a case in 8 which “jurists of reason would find it debatable whether the petition states a valid claim of the 9 denial of a constitutional right and that jurists of reason would find it debatable whether the 10 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 11 This order disposes of Docket Nos. 2, 4, 9, and 12. 12 The Clerk shall close the file. [13] 14 IT IS SO ORDERED. [15] 16 Dated: May 4, 2022 [17] 18 ______________________________________ EDWARD M. CHEN 19 United States District Judge