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Kennedy v. Fernotineo

United States District Court, W.D. Pennsylvania

July 30, 2014

BRANDON KENNEDY, Petitioner,
v.
AGENT M. FERNOTINEO, AUSA C. HALLER, WARDEN ALLEGHENY COUNTY JAIL, UNITED STATES MARSHALL, DEFENSE COUNSEL NAMED, Respondents.

REPORT AND RECOMMENDATION

LISA PUPO LENIHAN, Chief Magistrate Judge.

I. RECOMMENDATION

For the following reasons, it is respectfully recommended that the "Complaint; AND Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241" be dismissed to the extent that Petitioner seeks habeas relief and be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) to the extent Petitioner seeks relief other than release from custody.

II. REPORT

Brandon Kennedy ("Petitioner") is a federal pretrial detainee in custody at the Allegheny County Jail, awaiting trial on charges of interfering with commerce by robbery, using and carrying a firearm during and in relation to a crime of violence, and felon in possession of a firearm. See 2:13-cr-240-NBF (W.D. Pa.). On March 10, 2014, he filed in the Middle District of Pennsylvania, a document titled "Complaint; AND Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241." Because jurisdiction lies with this Court, the case was transferred here on March 14, 2014.

As summarized by the Middle District in its Memorandum Order dated May 1, 2014, Petitioner claims that "the evidence in [his criminal] case was totally and completely fabricated" and that "venue was manufactured" in Pennsylvania. He also claims that his lawyer committed legal malpractice and is "incompetent". For relief, he seeks monetary damages and to "be immediately discharged from custody, counsel... appointed, an evidentiary hearing... held" and "the indictment... dismissed."

Petition for Writ of Habeas Corpus

Petitioner challenges the legality of his pretrial detention, seeking habeas relief under 28 U.S.C. § 2241. It is well-settled, however, that a federal pretrial detainee cannot use a habeas corpus petition to challenge the proceedings in a pending federal criminal case. Falcon v. U.S. Bureau of Prisons , 52 F.3d 137, 139 (7th Cir. 1995); Whitmer v. Levi , 276 F.Appx. 217, 218-19 (3d Cir. 2008); Hall v. Pratt , 97 F.Appx. 246, 247-48 (10th Cir. 2004). Federal courts have consistently held that a federal criminal defendant who seeks to challenge some aspect of an ongoing federal criminal prosecution must bring his claims in the criminal case itself. See Jones v. Perkins , 245 U.S. 390, 391 (1918) ("It is well settled that in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be granted in advance of a trial.") As the Court explained in Whitmer:

"[C]laims relating to pending criminal charges should have been raised in [the petitioner's] criminal case, not in a habeas petition under 28 U.S.C. § 2241. Where a defendant is awaiting trial, the appropriate vehicle for violations of his constitutional rights are pretrial motions or the expedited appeal procedure provided by the Bail Reform Act, 18 U.S.C. § 3145(b), (c), and not a habeas corpus petition."

276 F.Appx. at 219.

The remedy provided by the federal habeas corpus statute, (28 U.S.C. § 2241), cannot be used to undermine, or interfere with, the proceedings in an ongoing federal criminal case. See Falcon , 52 F.3d at 139 ("[i]t seems to us to go far afield to seek habeas corpus relief which could conceivably interfere with the trial judge's control of the criminal case pending before him"); Hall 97 F.Appx. at 247-48 ("[a]llowing federal prisoner to bring claims in habeas proceedings that they have not yet, but still could, bring in the trial court, would result in needless duplication of judicial work and would encourage judge shopping'").

Among other things, Petitioner complains about fabrication of evidence, police and investigator misconduct that led to his arrest, place of venue, and his criminal counsel's incompetence during the investigation process. "Once a valid indictment or information has issued, the legality of arrest and the constitutionality of police activities must be tested by challenging the admissibility of evidence, rather than by habeas corpus." Gov't of V.I. v. Bolones , 427 F.2d 1135, 1136 (3d Cir. 1970). Such claims should be raised in Petitioner's pending criminal trial. This petition is not the appropriate vehicle to raise these alleged violations of constitutional rights. Therefore the habeas petition should be dismissed.

Complaint

Petitioner also alleges claims that respondents/defendants violated his rights under the United States Constitution by deliberately committing unspecified acts that "damaged" him. He states that he brings these claims pursuant to 42 U.S.C. § 1983; however, federal officials cannot be sued under § 1983 because they do not act under color of state law. Relative to the federal respondents/defendants, the undersigned is treating this case as a Bivens action. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 397 (1971), the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. "Bivens is the case establishing, as a general proposition, that victims of a constitutional violation perpetrated by a federal actor may sue the offender for damages in federal court ...


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