Opinion
CIVIL ACTION NO. 06-40282-GAO.
September 26, 2007
OPINION AND ORDER
The petitioner, Coy Phelps, is confined at the Federal Medical Center in Devens, Massachusetts ("FMC Devens"). In 1986 he was found not guilty only by reason of insanity in the United States District Court for the Northern District of California on charges of possessing, manufacturing, and placing pipe bombs at five San Francisco locations, in violation of 26 U.S.C. § 5861(d) and (f), and 18 U.S.C. § 844(f) and (I). Subsequently, Phelps was civilly committed to the custody of the Attorney General following a hearing pursuant to 18 U.S.C. §§ 4243 and 4247. Since that time, Phelps has been housed at and transferred between the FMCs in Springfield, Missouri; Rochester, Minnesota; and Butner, North Carolina, until his most recent transfer to FMC Devens in November, 2004.
On December 19, 2006, Phelps filed a petition for a writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2241. Phelps named as respondents Dr. Shawn Channel, Dr. Jeffrey Sonnega, Dr. Howard Haas, social worker Sara Rasmussen, and former FMC Devens Warden David Winn (who has now been replaced by the current warden, Carolyn Sabol). According to Phelps, on November 9, 2006, Dr. Channel, Dr. Sonnega, Dr. Haas, and Ms. Rasmussen held a meeting "to assess and to evaluate Phelps in a `Risk Assessment.'" (Pet. for Writ of Habeas Corpus at 1.) These respondents subsequently formulated a "Risk Assessment Panel Report" ("RAPR") in which they concluded that "Mr. Phelps is presently suffering from a mental disease, Schizophrenia, Paranoid Type, as a result of which his release to the community would create a substantial risk of bodily injury to another person or serious damage to the property of another. FEDERAL BUREAU OF PRISONS, RISK ASSESSMENT PANEL REPORT 7 (November 9, 2006) (attached to petition).
Phelps objects to the RAPR in several respects. He argues that the respondents have acted "in clear absence of all lawful [jurisdiction] and authority," and therefore cannot "formulate any reports nor send reports to any courts." (Pet. for Writ of Habeas Corpus at 2.) Underlying this assertion is Phelps' claim that persons civilly committed under 18 U.S.C. § 4243 cannot be confined at a facility operated by the Federal Bureau of Prisons ("BOP"). Id. at 3. Phelps reasons that, because the respondents are employees of the BOP, their preparation and submission of the RAPR was similarly unauthorized. See id. Phelps also objects to the RAPR on the ground that it is "false and misleading in violation of 18 U.S.C. § 1001." Id.
Although Phelps brings this petition under 28 U.S.C. § 2241, the rules governing petitions brought pursuant to § 2254 cases may be applied to other habeas petitions. See Rule 1(b) of the Rules Governing Habeas Corpus Cases Under Section 2254. Under Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254, the Court is required to examine a petition, and if it "plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition. . . ." Similarly, under 28 U.S.C. § 2243, if "it appears from the application that the applicant or person detained is not entitled [to the writ]," the district court is not required to order the respondent "to show cause why the writ should not be granted." In considering whether Phelps' petition clears this hurdle, the Court liberally construes Phelps' petition because he is proceeding pro se.
Phelps' claim that the placement of persons committed under 18 U.S.C. § 4243 in a BOP facility is unlawful is both without merit and has been previously litigated by Phelps. See Phelps v. United States Bureau of Prisons, 62 F.3d 1020 (8th Cir. 1995); Phelps v. United States, 831 F.2d 897 (9th Cir. 1987). The Ninth Circuit held that § 4243 was not unconstitutionally vague and overbroad.See Phelp, 831 F.2d at 898. The Eight Circuit resolved Phelps' claim that civilly committed persons could not be committed to the custody of the Attorney General and, derivatively, the BOP, holding that a federal medical center is a "suitable facility" for Phelps within the meaning of §§ 4243 and 4247. Id. Accordingly, I decline to entertain Phelps' recurrent claim that the BOP is not a "suitable facility" that can have lawful custody of a civilly committed person such as Phelps under 18 U.S.C. § 4243. See 28 U.S.C. § 2244(a) ("No circuit or district judge shall be required to entertain an application for a writ of habeas corpus . . . 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. . . .").
Even were I to reach the merits of this claim, the prior courts to decide this issue were correct that a facility is not unsuitable simply because it is operated by the BOP and primarily houses prisoners, and therefore Phelps is lawfully in custody at FMC Devens. See Phelps, 62 F.3d at 1023. Since Phelps' claim that the respondents lack the authority to formulate any reports about him, such as the RAPR, flows from his false premise that the BOP lacks lawful custody of him, this claim is similarly without merit. Indeed, not only are the respondents authorized to evaluate Phelps and submit an RAPR, they (or others at FMC Devens) have an obligation to do so under 18 U.S.C. § 4247(e)(1)(B).
Phelps' objections to the content of this report do not form the basis for habeas relief. Phelps claims that some of the statements in the RAPR were "false and misleading in violation of 18 U.S.C. § 1001." (Pet. at 3). Phelps does not, however, have a private right of action to enforce criminal statutes. See Diamond v. Charles, 476 U.S. 54, 64-65 (1986). To the extent Phelps believes that he is eligible for discharge because his release would not create a substantial risk of bodily injury to another person or serious damage to property of another, he may bring an action in the committing court, the United States District Court for the District of Northern California, under 18 U.S.C. § 4247(h) (providing that counsel or legal guardian for civilly committed person may file a motion with the committing court for discharge).
For the foregoing reasons, the Petition for Writ of Habeas Corpus is DISMISSED.
It is SO ORDERED.