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Bradin v. Thomas

United States District Court, D. Kansas

May 7, 2019

JOHN BRADIN, Petitioner,
v.
LINDA THOMAS, Warden, and UNITED STATES BOARD of PROBATION & PAROLE, [1] Respondents.

          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 ...


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