United States District Court, D. Kansas
MEMORANDUM AND ORDER
JOHN
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
This
matter is a petition for writ of habeas corpus filed under 28
U.S.C. § 2241. Petitioner is in federal custody at Core
Civic Leavenworth Detention Center in Leavenworth, Kansas
(“Core Civic”). The Court entered an Order (Doc.
6) setting a deadline of April 19, 2019, for Respondent to
show cause why the writ should not be granted, and a deadline
of May 20, 2019, for Petitioner to file a traverse. The Court
entered an Order (Doc. 14) granting Respondent's motion
for an extension of time, extending the answer deadline to
May 20, 2019, and extending the traverse deadline to June 20,
2019. This matter is before the Court on multiple motions
filed by Petitioner pro se.
On
April 17, 2019, the Court entered an Order (Doc. 16)
appointing the Office of the Federal Public Defender for the
District of Kansas (“FPD”) to represent
Petitioner. Because Petitioner continued to file pro se
motions after appointment of the FPD, the Court set a status
conference for April 25, 2019. At the status conference, the
Court ordered the FPD to confer with Petitioner and file, on
or before April 30, 2019, a document signed by both
Petitioner and the FPD setting forth whether or not the FPD
will continue to represent Petitioner. On April 30, 2019, the
FPD emailed the Court indicating that they were unable to
obtain a signed document from Petitioner indicating whether
or not he wanted the FPD to remain in the case or whether he
wanted to proceed pro se. The email is attached to this
Order, and includes a document provided to the FPD by
Petitioner titled “Notice of Refusal to Waive 6th
Amendment Right to Hire Counsel of Choice.”
Because
it is unclear whether or not Petitioner intends to proceed
pro se or whether that decision is contingent on his success
on his pending motions, the Court will rule on the pending
motions and give Petitioner an opportunity to notify the
Court as to whether or not he wants the FPD to remain in this
case.
1)
Motion for Subpoena (Doc. 4) and Motion for Release of Seized
Assets for Hiring Counsel of Choice Pursuant to Amendment VI,
U.S. Constitution (Doc. 5)
Petitioner
filed a Motion for Subpoena (Doc. 4), seeking to subpoena his
box of personal property, Missouri photo I.D. Card, birth
certificate, Social Security Card, and medical records.
Petitioner alleges that these items were removed from him
under the Marshal's Service orders, and are currently in
the possession of the South Central Correctional Center in
Licking, Missouri. Petitioner alleges that the items are
“immediately necessary” to prove the Social
Security Administration's illegal seizure of his assets,
to establish his legal right to an adversary hearing, and to
provide for the issuance of an order for release of his
assets for “hiring counsel of choice.” Petitioner
further asserts that surrender of his I.D. and medical
records is necessary to enable him to obtain medical
treatment and to perform banking and financial transactions
necessary for hiring counsel.
Petitioner's
claims regarding his property are not properly brought in a
habeas action. The “purpose of a § 2241 habeas
proceeding is to allow a person in custody to attack the
legality of that custody . . . [b]ut a prisoner ‘who
challenges the conditions of confinement must do so through a
civil rights action.'” Davis v. Fox, 701
Fed.Appx. 715, 716 (10th Cir. 2017) (unpublished) (citations
omitted) (due process claim regarding impoundment of personal
property does not challenge the fact or duration of
confinement); see also Davis v. Heimgartner, Case
No. 16-3063-SAC, 2016 WL 3855551, at n.9 (D. Kan. July 15,
2016) (“Generally, a prisoner states no claim for
habeas corpus relief unless he alleges the deprivation of a
liberty interest, and he has no cause of action under 42
U.S.C. § 1983 for an unauthorized deprivation of
property, either intentional or negligent, by a state
employee if a meaningful state post deprivation remedy is
available for the loss.”) (citing Hudson v.
Palmer, 468 U.S. 517, 533 (1984); see O'Neal v.
Price, 531 F.3d 1146 (9th Cir. 2008)).
The
U.S. District Court in Missouri has already ruled on
Petitioner's claims regarding his property. On December
6, 2018, Petitioner filed a pro se civil rights
action in the U.S. District Court for the Western District of
Missouri. See Bradin v. U.S. Marshals Service, Case
No. 18-cv-03402-RK. In Case No. 18-3402-RK, Petitioner also
sought the return of his property. The court held that:
Plaintiff's allegations concerning the mishandling of his
property fail to state a federal claim. “An
unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedure
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss
is available.” Hudson v. Palmer, 468 U.S. 517,
533 (1984). The unauthorized destruction of property by
government officials does not violate due process because
Missouri provides an adequate postdeprivation remedy. See
Orebaugh v. Caspari, 910 F.2d 526, 527 (8th Cir. 1990)
(citing Hudson and Maples v. United Savings
& Loan Assoc., 686 S.W.2d 525, 527 (Mo. App. 1985)).
Under Missouri law, “[c]onversion is the unauthorized
assumption of the right of ownership over the personal
property of another to the exclusion of the owner's
rights.” Maples, 686 S.W.2d at 527.
Pursuant to Hudson and Orebaugh, Plaintiff
fails to state a violation under the United States
Constitution for the property that Defendants allegedly lost
because Missouri law provides an adequate postdeprivation
remedy.
Bradin v. U.S. Marshals Service, Case No.
18-cv-03402-RK, Doc. 12 (W.D. Mo. Jan. 14, 2019). Petitioner
filed a motion to set aside the judgment and a motion for
preliminary injunction. Id. at Docs. 15, 16. The
court denied the motion to set aside judgment and found the
motion for preliminary injunction moot. Id. at Doc.
17. Petitioner filed a Notice of Appeal on January 24, 2019,
and the appeal is currently pending. See Bradin v. U.S.
Marshals Service, Case No. 19-1205 (8th Cir.).
Petitioner
also filed a Motion for Release of Seized Assets for Hiring
Counsel of Choice Pursuant to Amendment VI U.S. Constitution
(Doc. 5), seeking release of the seized assets to enable him
to hire counsel to represent him in his habeas proceeding and
at his upcoming parole hearing. Petitioner also seeks the
release of “all his assets currently illegally seized
by . . . the Social Security Administration . . . totaling
$1, 788, 767.00.”
Petitioner
claims that while he was awaiting trial, he was entitled to
full Social Security Disability and SSI benefits, but was not
receiving them. Petitioner claims “[t]hey were sent to
his parents (now deceased) who were angry with the petitioner
for being arrested, and did not forward his payments while in
county jail in Jasper County.” (Doc. 5, at 1.)
Petitioner claims that the Social Security Administration
improperly stopped his benefits prior to his date of
conviction, which was therefore “a civil forfeiture
under 21 U.S.C. § 881.” Id. at 2.
Petitioner
argues that his failure to receive his social security
benefits while he was in pretrial detention but prior to his
conviction, “was the equivalent of a civil forfeiture
under 21 U.S.C. Section 881.” (Doc. 5, at 2.)
Petitioner then cites cases that he argues stand for the
proposition that a criminal defendant may be entitled to a
post-seizure adversary hearing where the government's
freezing of a criminal defendant's assets with an ex
parte restraining order as a prelude to a criminal forfeiture
deprives the defendant of his right to retain counsel.
Petitioner then jumps to the conclusion that he is entitled
to his unpaid Social Security benefits by arguing that: 1)
“he has proven, beyond a reasonable doubt, ” that
the law did not allow the SSA to seize Petitioner's
assets prior to his conviction; 2) his state sentences are
void;[2] and 3) therefore his parole was never
revoked and he is entitled to release of all his assets
“and the respondents nor the government cannot prove
otherwise.” (Doc. 5, at 5.)
The
problem with Petitioner's argument is that he does not
have a proper determination that he is entitled to the Social
Security benefits he claims were wrongfully withheld.
Therefore, his case is not like a civil forfeiture where a
defendant's assets are seized. The Court previously noted
in its Order at Doc. 10, that his habeas proceeding is not
the proper avenue to challenge his right to those benefits.
He may argue that he has proven “beyond a reasonable
doubt” that he is entitled to benefits, but this Court
is not the proper venue to make that determination.
The
Court noted in its previous Order that a claim against the
Social Security Administration is not properly before this
Court in this habeas action. See Doc. 10. The Court
noted that:
If Petitioner intends to pursue a claim against the Social
Security Administration, he needs to follow the Social
Security administrative procedures rather than proceeding in
this habeas action. See Head v. New Mexico Dep't of
Corr., No. 16-CV-00509-MCA-GJF, 2016 WL 9777224, at *1-2
(D. N.M. Sept. 27, 2016) (finding petitioner's amended
petition frivolous and stating that “Petitioner is not
in the custody of the Social Security Administration, the
Social Security Administration is not a named respondent, and
this Court lacks jurisdiction to grant habeas relief against
the Social Security Administration”); see also
Treece v. Louisiana, No. 2:08-cv-1486, 2008 WL 5480566,
at *1 (W.D. La. Dec. 5, 2008) (report and recommendation)
(“[i]n denying petitioner's request for relief, the
Fifth Circuit noted (as did the Eastern District) that
petitioner's challenge to the Social Security
Administration's decision to withhold his social security
benefits based on his incarceration was not cognizable in an
application for habeas corpus.”); Gray v. People of
Calif., No. CV 13-0742 JVS (SS), 2014 WL 1325312, at *6
(C.D. Cal. April 2, 2014) (noting petitioner's previous
petition was meritless and was dismissed where petitioner
failed to challenge his conviction or sentence and instead
requested review of the Social Security Administration's
alleged denial of benefits).
(Doc. 10, at 2-3.)
In
Ryan v. Bentsen, Ryan challenged the suspension of
his benefits while he was an incarcerated felon, arguing that
the distinction between felons and misdemeanants violates due
process. Ryan v. Bentsen, 12 F.3d 245, 246 (D.C.
Cir. 1993). The district court dismissed Ryan's case for
lack of subject matter jurisdiction because he had not
exhausted his administrative remedies, finding that his claim
arose under the Social Security Act and that he had not
received a “final decision” of the Secretary of
the Department of Health and Human Services rendered after a
hearing, as required by 42 U.S.C. § 405(g). Id.
at 247.
Petitioner's
cause of action regarding his property is with the State of
Missouri, and his cause of action regarding his loss of
benefits is with the Social Security Administration.
Petitioner's motions are dismissed for lack of
jurisdiction.
2)
Request to Enter Default of Defendants (Doc. 12)
Petitioner
asks the Court to enter a default against Respondents for
“failure to plead or otherwise defend in a timely
manner” and as a sanction for violating
Petitioner's constitutional rights. (Doc. 12, at 1.)
Petitioner then makes arguments about the
“defendants'” delay in sending his petition
to the Court for filing, which he claims is “proven
beyond a reasonable doubt” and evidence that
Respondents violated 18 U.S.C. § 1503 by
“illegally withholding petitioner's legal
mail.” Id. Petitioner then claims that
Respondents' withholding of his writ constituted
“obstruction of justice, ” and “everything
that took and/or takes place thereafter is ‘fruit of
the poisonous tree'.” Id. Petitioner
claims that where Respondents violated the law of
“obstruction of justice” and “mail
...