Opinion
CASE NO. 3:20-cv-06130-BJR-JRC
02-08-2021
EDWARD L. DANZER, Petitioner, v. JONATHAN MEYER, Respondent.
REPORT AND RECOMMENDATION Noted: February 26, 2021
This matter is before the Court on petitioner's writ for habeas corpus (Dkt. 5) and the Court's order regarding consent to convert to a 28 U.S.C. § 2254 petition. Dkt. 4, at 1.
Petitioner has been convicted of third-degree assault in a Washington State court and is subject to a default judgment due to his failure to answer a writ of restitution. The undersigned previously informed petitioner that his habeas claims challenging his state court judgment and sentence were not appropriately brought in a § 2241 petition and ordered petitioner to advise the Court whether he consented to converting his petition to a § 2254 petition. The Court warned petitioner that if he elected not to convert the petition, the Court would recommend dismissal of the petition without prejudice. Petitioner has not consented and instead continues to seek to proceed under 28 U.S.C. § 2241.
Therefore—and because petitioner's claims regarding his assault conviction are not cognizable in a § 2241 petition—the petition should be dismissed without prejudice. No certificate of appealability should issue.
BACKGROUND
I. Original Petition and Court's Order on Consent
Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Dkt. 1. Petitioner stated that on September 3, 2020, the Lewis County Superior Court sentenced him on an assault conviction and that he was confined under "Electric Home Monitoring." Dkt. 1, at 1. Petitioner appears to challenge both his conviction and sentence for the assault and a writ of garnishment that the Lewis County Superior Court had issued.
Upon review of petitioner's § 2241 petition, the undersigned determined that the matter appeared to be appropriately brought under § 2254, not § 2241, and that the petition should be converted to a § 2254 petition and explained the reasons why. See Dkt. 4, at 3. The undersigned directed petitioner to "advise the Court if he consent[ed] to converting" his petition on or before January 8, 2021. Dkt. 4, at 5. The Court warned petition that if he elected not to convert the petition, the Court would recommend dismissing the petition without prejudice. Dkt. 4, at 5.
II. Amended Petition and Supporting Materials
In response to the Court's Order, petitioner filed an amended writ of habeas corpus, again pursuant to 28 U.S.C. § 2241. See Dkt. 5. Petitioner states that he seeks relief under § 2241 on the basis that his attorneys failed to provide effective assistance of counsel and that he wants the Court to "nullify" the writ of garnishment (Dkt. 5, at 9-13) and his assault conviction (Dkt. 5, at 134-40) by issuing a writ of habeas corpus. Dkt. 5, at 5-6.
Materials attached to petitioner's second petition document that petitioner is the sole proprietor of "6K Products" (Dkt. 5, at 17, 21), a company subject to a writ of garnishment to satisfy indebtedness of a purported 6K Products employee. See Dkt. 5, at 11, 21-22. On April 26, 2018 (see Dkt. 5, at 51), petitioner appeared in Lewis County District Court (see Dkt. 5, at 98) after allegedly having refused to answer the writ, where he asserted that he was being forced into involuntary servitude. See Dkt. 5, at 21. Lewis County Judge R.W. Buzzard entered a default judgment against petitioner for $385.99 related to the writ of garnishment. See Dkt. 5, at 99.
During the hearing on the writ, according to the transcript, petitioner attacked the collections agency's attorney in an altercation that Judge Buzzard described as follows:
I granted [the collection's agency's] motion and that's when [petitioner] swung on [the collection's agency's attorney] and attacked him. And so I left the bench and the gentleman back there helped us and took [petitioner] down, and I held him in a chokehold until law enforcement got here.Dkt. 5, at 24. Petitioner was later convicted of third-degree assault and, in September 2020, was sentenced to three months' confinement on electronic monitoring and a year of community custody. See Dkt. 5, at 51, 135-36.
DISCUSSION
At the outset of a case brought under 28 U.S.C. § 2241, this court must determine whether it has jurisdiction over the petition. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006); Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). Further, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases; see also 28 U.S.C. § 2243 (Rules Governing Section 2254 cases may also be applied to habeas corpus actions filed under § 2241). If the petitioner is not entitled to relief, the petition must be summarily dismissed. Rule 4, Rules Governing Section 2254 Cases; Obremski v. Maass, 915 F.2d 418 (9th Cir. 1990)
Petitioner's claims regarding his assault conviction in his § 2241 petition continue to be inappropriate for a § 2241 petition. "Because § 2254 limits the general grant of habeas relief under § 2241, it is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction." Dominguez v. Kernan, 906 F.3d 1127, 1135 (9th Cir. 2018) (internal citation and quotation omitted). "By contrast, the general grant of habeas authority in § 2241 is available for challenges by a state prisoner who is not in custody pursuant to a state court judgment—for example, a defendant in pre-trial detention or awaiting extradition." Id.
Petitioner initiated this matter in November 2020, shortly after his sentence was imposed and when he was, according to his judgment and sentence, still serving his three-month sentence. See Dkt. 5, at 134-39. Although it has been more than three months since petitioner's sentencing, he remains, according to his judgment and sentence, in community custody. See Dkt. 5, at 136; see also Jones v. Cunningham, 371 U.S. 236, 243 (1963) (one who is on parole is in custody for habeas purposes). Therefore, petitioner is in custody pursuant to a state court judgment and sentence and must bring any challenge to his judgment and sentence by way of a § 2254 petition. The Court notes that even if petitioner were no longer on community custody, his claims would still be subject to dismissal because a habeas action may only be brought by one who is "in custody." See 28 U.S.C. §§ 2241(c), 2254(a), 2255.
The Court previously informed petitioner that his claims had to be brought in a § 2254 petition, explaining that if petitioner did not consent to converting the petition to a § 2254 petition, the Court would recommend dismissal of the petition without prejudice. Dkt. 4, at 3-5. The Court sent a blank form for a § 2254 petition to petitioner. Dkt. 4, at 5. Nevertheless, petitioner continues to seek to proceed by way of § 2241 petition. Therefore, his § 2241 petition should be dismissed, to the extent that petitioner challenges his third-degree assault conviction.
Separately, the Court notes that petitioner also appears to seek to have the writ of garnishment invalidated by a writ of habeas corpus. To the extent that he seeks to challenge the writ of garnishment directing petitioner's company to satisfy its employee's indebtedness (Dkt. 5, at 9-13) and the default judgment against petitioner and his company (Dkt. 5, at 98-99), an action in habeas cannot provide the relief petitioner seeks. Again, as the Court previously informed petitioner, "a habeas petition requires that one be 'in custody'" (Dkt. 4, at 4)—but petitioner is not "in custody" related to the writ of garnishment or resulting default judgment. A monetary penalty or fine is not the same as being in custody. See, e.g., England v. I.R.S., 914 F.2d 262 (9th Cir. 1990), cited in Dkt. 4, at 4; Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998); see also Brian R. Means, Federal Habeas Manual § 1:20 (Fines) (collecting cases). Nor is economic loss. Edmunds v. Won Bae Chang, 509 F.2d 39, 41 (9th Cir. 1975). And being in custody on his assault conviction does not render petitioner in custody on his claims related to the writ of restitution and default judgment. See United States v. Thiele, 314 F.3d 399, 402 (9th Cir.2002) (interpreting 28 U.S.C. § 2255), cited in Tuggle v. Campbell, 261 F. App'x 56, 58 (9th Cir. 2007) (discussing § 2254).
Therefore, the petition should be dismissed without prejudice. And because petitioner has not made a substantial showing of the denial of a constitutional right as required by U.S.C. § 2253(c)(2), no certificate of appealability should be issued. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (setting forth the standard that such a certificate should issue if jurists of reason could disagree with the resolution of constitutional issues or if the issues presented are adequate to deserve encouragement to proceed further). Nor is an evidentiary hearing required, as the record conclusively shows that petitioner is not entitled to a habeas petition. See Anderson v. United States, 898 F.2d 751, 753 (9th Cir. 1990).
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on February 26, 2021, as noted in the caption.
Dated this 8th day of February, 2021.
/s/_________
J. Richard Creatura
United States Magistrate Judge