Opinion
CIV-24-321-HE
08-05-2024
RAYMOND C. EVANS, Plaintiff, v. GRADY COUNTY JAIL, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner, a pro se federal prisoner, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Docs. 1, 5).United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). For the reasons stated below, the undersigned recommends that the Petition be DISMISSED WITHOUT PREJUDICE and Petitioner's pending motion (Doc. 9) be DENIED AS MOOT.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
The Court must review habeas petitions and summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4, Rules Governing § 2254 Cases.“[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
The Court may apply “any or all” of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), Rules Governing § 2254.
II. Procedural History
On April 1, 2004, in Case No. F-7985-02 of the Superior Court of the District of Columbia (“the D.C. Superior Court”), a jury convicted Petitioner of twenty-six counts: three counts of first-degree burglary while armed; sixteen counts of first-degree sexual abuse while armed; one count of threatening to injure a person; one count of armed robbery; two counts of aggravated assault while armed; one count of second-degree theft; and two counts of obstruction of justice. Evans v. Daniels, No. 1:09-CV-02123-RWR, at Doc. 1, at Ex. 1, at 12 (D.C.). The D.C. Superior Court sentenced Petitioner to a term of imprisonment of sixty-two years, followed by a term of supervised release of five years. Id. Petitioner appealed his conviction, and the District of Columbia Court of Appeals affirmed. Id.
Petitioner previously filed two petitions for habeas relief in the United States District Court for the District of Columbia, and both petitions were dismissed. See id. at Doc. 2; Evans v. Smith, No. 1:08-CV-372-UNA, at Doc. 3 (D.D.C.). Petitioner filed the instant Petition while he was confined at the Grady County Jail in Chickasha, Oklahoma. (Doc. 5, at 1).
III. The Instant Petition
On March 29, 2024, Petitioner filed the instant Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, (Doc. 1, at Ex. 2), and later filed an Amended Petition, (Doc. 5), in response to an order of this court.
In Ground One of the Petition, Petitioner states, “Grady County Jail whole housings cater to gang related inmates excluding one pod classification denied offer of and refused upon discovery to intimidate me in false detention.” (Doc. 5, at 6). In Ground Two, Petitioner states, “[f]alse detention is being used to extort me with government informants and unlawful electronic surveillance as FBOP also did.” (Id.) In Ground Three, Petitioner states, “Gov. chips in bodies of peer aid staff & inmate silent communication of fraud and other life threatening criminal acts premeditated under false detention targeting.” (Id.) Petitioner also alleges facts asserting that he is being treated differently than other inmates because of the sexual nature of his offenses and that jail officials have interfered with his money. (Id.)
For relief, Petitioner requests “1) Transfer to similar situated status sex case's Pod 4 East 2) or: release me to the streets (for failure to protect from sex case discrimination and extortion tactics patented in false detention of administrative segregation target, killing me slowly at 48 24 hour lock up in building no sunshine 4 years under surveillance murder [operation] even radiation.).” (Id. at 7).
IV. The Petition Should Be Dismissed Because It Does Not Sound in Habeas.
“Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus and a complaint under . . . 42 U.S.C. § 1983” or Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Muhammad v. Close, 540 U.S. 749, 750 (2004) (internal citations omitted). A habeas petition is appropriate when a prisoner seeks to challenge the legality of his or her custody under the Constitution or federal law. Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). A habeas petition brought pursuant to 28 U.S.C. § 2241, as Petitioner has styled his petition, is “cognizable if it attacks the execution of a prisoner's sentence as it affects the fact or duration of the prisoner's confinement.” Ortiz v. Scibana, No. CIV-06-834-M, 2006 WL 3096689, at *1 (W.D. Okla. Oct. 31, 2006) (citing Overturf v. Massie, 385 F.3d 1276, 1278 (10th Cir. 2004)). Matters most often challenged in § 2241 petitions include the deprivation of good-time credits and other disciplinary decisions that affect the duration of a prisoner's confinement. McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997). Claims attacking the conditions of a prisoner's confinement are not cognizable under a § 2241 petition but must be brought pursuant to § 1983 or Bivens. Id.; Palma-Salazar, 677 F.3d at 1035.
Petitioner's allegations, as liberally construed by the undersigned, relate to the conditions of his confinement at the Grady County Jail and possibly other civil rights he believes have been violated. He suspects that government actors, with the assistance of other inmates, are unlawfully extorting, surveilling, and targeting him and that he is being discriminated against because of the sexual nature of his offenses. (Doc. 5, at 6). None of these allegations relate to the execution of Petitioner's sentence as it affects the fact or duration of his confinement, but instead relate to his treatment while serving his sentence. Petitioner's request to be transferred to a different pod, (id. at 7), also fails to sound in habeas, as the Tenth Circuit has held that a prisoner's challenge to where he or she is housed within a facility is a conditions-of-confinement claim, not a claim attacking the execution of a prisoner's sentence. Buhl v. Berkebile, 597 Fed.Appx. 958, 959 (10th Cir. 2014). As a federal prisoner, Petitioner must address his conditions of confinement claims through Bivens. The Petition is not cognizable under § 2241.
Furthermore, the undersigned does not recommend converting Petitioner's habeas petition to a civil rights complaint.
Although this Court has discretion to construe a mislabeled habeas petition as a civil rights complaint, it should not do so because “there are pitfalls of different kinds for prisoners using the wrong vehicle,” “especially since the enactment of the Prison Litigation Reform Act of 1996 (PLRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) of the same year.” Bunn v. Conley, 309 F.3d 1002, 1007 (7th Cir. 2002). Among other requirements, the PLRA imposes a high filing fee and limits on the number of actions a prisoner may file in forma pauperis, that is, without prepayment of fees and costs. 28 U.S.C. §§ 1914 & 1915.Rean v. FNU LNU, No. CIV-23-537-J, 2023 WL 5269675, at *3 (W.D. Okla. July 14, 2023), report and recommendation adopted, 2023 WL 5254737 (W.D. Okla. Aug. 15, 2023). Given the “pitfalls” associated with converting a prisoner's habeas petition into a civil rights complaint, along with Petitioner's failure to allege that particular constitutional rights were violated by the specific actions of specific defendants, the undersigned will not construe the Petition as a civil rights complaint. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated”).
Lastly, to any extent that Petitioner seeks to invalidate his conviction or sentence through 28 U.S.C. § 2255, this Court does not have jurisdiction because such a petition must be filed in the judicial district in which the conviction and sentence were imposed. Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016). Petitioner was convicted and sentenced in the District of Columbia, not the Western District of Oklahoma. Evans v. Daniels, No. 1:09-V-02123-RWR, at Doc. 1, at Ex. 1, at 12 (D.C.). Thus, Petitioner may not bring a habeas petition under § 2255 in this Court. Because Petitioner's claims are not cognizable under § 2241 or § 2255, and because the undersigned does not recommend converting the Petition to a civil rights complaint, the Court should dismiss the Petition in its entirety.
V. Petitioner's Pending Motion is Moot and the Letters Should Be Stricken
Petitioner filed a “Motion for Summary Since No Excuses as Sole Matter of Law Needing Zero Material Why in False Detention” on May 25, 2024. (Doc. 9). Because the undersigned recommends dismissal of the Petition in its entirety, the Motion should be denied as moot.
Petitioner also filed several letters and a notice (Docs. 7, 8, 10, 11) with the Court. Though a court will “construe [Plaintiff's] pleadings liberally because he is a pro se litigant, he nevertheless must follow the same rules of procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Accordingly, the Court does not consider and summarily strikes any letter, notice, or other filing that is not consistent with the motion practice established by the Federal Rules of Civil Procedure or this Court's Local Civil Rules. Plaintiff's letters and notice (Docs. 7, 8, 10, 11) are therefore ordered STRICKEN from the record.
VI. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DISMISS Plaintiff's Petition (Docs. 1, 5) in its entirety and DENY AS MOOT the pending Motion for Summary Judgment (Doc. 9).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before August 26, 2024, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.