Risenhoover v. Washington County Commun. Services, Civil No. 07-4509 ADM/AJB.
| Citation | 545 F.Supp.2d 885 |
| Decision Date | 12 February 2008 |
| Docket Number | Civil No. 07-4518 ADM/AJB.,Civil No. 07-4509 ADM/AJB. |
| Parties | Paul Maas RISENHOOVER, Petitioner, v. WASHINGTON COUNTY COMMUNITY SERVICES and Secretary of State Condoleezza Rice, Respondents. Paul Maas Risenhoover, Petitioner, v. Theresa Wilson, Patricia Kinzer, Jenna Pennfield, Washington County Community Services, Secretary of State Condoleezza Rice, and John or Jane Doe Secretary of Health and Human Services, Respondents. |
| Court | U.S. District Court — District of Minnesota |
Paul Maas Risenhoover, pro se.
Gregory G. Booker, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Secretary of State Condoleezza Rice.
Kari A. Lindstrom, Esq., Washington County Attorney's Office, Stillwater, MN, on behalf of Theresa Wilson, Patricia Kinzer, Jenna Pennfield, and Washington County Community Services.
These related matters are before the undersigned United States District Judge for consideration of: (1) Petitioner Paul Maas Risenhoover's ("Petitioner") Objections [Civ. No. 07-4509 Docket No. 6] to Magistrate Judge Arthur J. Boylan's Report and Recommendation ("R & R") [Civ. No. 07-4509 Docket No. 5] that Petitioner's "Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody" ("28 U.S.C. § 2254 Petition") [Civ. No. 07-4509 Docket No. I] be denied; (2) Petitioner's Motion for Temporary Restraining Order [Civ. No. 07-4509 Docket No. 2]; (3) Petitioner's Motions to Stay [Civ. No. 07-4509 Docket Nos. 7 and 8]; (4) Petitioner's Motions to Supplement Habeas Petition [Civ. No. 07-4509 Docket Nos. 12 and 13]; (5) Petitioner's "Petition for Writ of Habeas Corpus [by a] Person[] in Federal Custody under Title 28 U.S.C. Section 2241" ("28 U.S.C. § 2241 Petition") [Civ. No 07-4518 Docket No. 1]; (6) Petitioner's Ex Parte Motion for Writ of Mandamus [Civ. No. 07-4518 Docket No. 42] in Civil Number 07-4518. For the reasons set forth below, Petitioner's Objections are overruled, Petitioner's 28 U.S.C. § 2241 and § 2254 Petitions, Motion for Temporary Restraining Order, Motions to Stay, and Motions to Supplement Habeas Petition are denied with prejudice.
Petitioner's 28 U.S.C. § 2241 and § 2254 Petitions were filed and docketed separately on November 2, 2007. Although both Petitions raise issues arising out of the same nucleus of facts — the potential revocation of Petitioner's United States passport because of past due child support payments — the Petitions were initially assigned to different judges before being reassigned to the undersigned United States District Judge. The procedural posture regarding each Petition is slightly different.
Judge Boylan's November 8, 2007, R & R in Civil Number 07-4509 recommends summary denial of Petition's 28 U.S.C. § 2254 Petition because of lack of subject matter jurisdiction. R & R at 2; see Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner."). Neither Washington County Community Services ("WCCS") nor Secretary of State Condoleezza Rice (the "Secretary of State") has appeared in Civil No. 07-4509.
In Civil Number 07-4518, Magistrate Judge Janie S. Mayeron ordered that the respondents file responses limited to the issue of subject matter jurisdiction. Nov. 27, 2007, Order [Civ. No. 07-4518 Docket No. 4]. WCCS and its agents Theresa Wilson ("Wilson"), Patricia Kinzer ("Kinzer"), Jenna Pennfield ("Pennfield") (Wilson, Kinzer, Pennfield, and WCCS collectively are the "WCCS Respondents") filed a joint Response [Civ. No. 07-4518 Docket No. 34] on December 21, 2007, and the Secretary of State filed a Response [Civ. No. 07-4518 Docket No. 35] on December 27, 2007. The Secretary of Health and Human Services has not appeared in Civil Number 07-4518.
Because Petitioner's Petitions in Civil Numbers 07-4509 and 07-4518 arise out of the same nucleus of operative facts and present nearly identical claims, this Court addresses the claims raised in both Petitions in this Order.
42 U.S.C. § 652(k) establishes a mechanism for the denial of a passport application and the revocation of an existing passport of an individual who owes more than $2,500 in past due child support. Under § 652(k), a state agency certifies to the Department of Health and Human Services ("DHHS") that an individual owes more than $2,500 in past due child support. 42 U.S.C. § 652(k)(1). The secretary of DHHS then transmits the certification to the secretary of state. Id. Upon receiving the certification, "[t]he Secretary of State shall ... refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual." 42 U.S.C. § 652(k)(2). In 2005, the statutory amount that triggered certification was $5,000. 42 U.S.C. § 652(k)(1) (2005).
On March 20, 1995, an Oklahoma state court entered a decree of divorce dissolving the marriage of Petitioner and Ying Liang ("Liang"), awarding primary custody of the couple's minor son to Petitioner, and ordering Liang to pay child support of $214.92 per month to Petitioner. Civ. No. 07-4509 Mot. for TRO [Civ. No. 07-4509 Docket No. 2] at 29-32. On July 25, 1997, the Oklahoma court entered an order reflecting an agreement between Petitioner and Liang that primary custody of the couple's child be awarded to Liang and that Petitioner pay child support of $500 per month to Liang beginning in May 1997. 28 U.S.C. § 2241 Petition Attach. 1.
In 2005, Liang, who had relocated to Washington County, Minnesota, sought enforcement of the 1997 Oklahoma child support order through WCCS. Civ. No. 07-4509 Mot. for TRO at 2. On December 15, 2005, the State Department issued Petitioner a limited-validity passport rather than a full-validity passport because DHHS had transmitted WCCS's certification that Petitioner owed more than $5,000 in past due child support. Washington Decl. [Civ. No. 07-4518 Docket No. 36] ¶ 7. The limited-validity passport was valid only for direct return to the United States. Id. ¶ 7. Petitioner was living in Taiwan in December 2005. Id. Ex. 2. On February 22, 2006, the State Department issued a full-validity passport to Petitioner based on DHHS's notification that Petitioner had paid the outstanding child support. Id. ¶ 18.
In March 2007, WCCS certified to DHHS that Petitioner owed more than $2,500 in child support. 28 U.S.C. § 2241 Petition at 2. On April 24, 2007, DHHS transmitted WCCS's certification to the State Department. Washington Decl. ¶ 9. Petitioner filed his 28 U.S.C. § 2241 and § 2254 Petitions because the visa pages in his passport are full and he is concerned the State Department will revoke his passport if he submits it for the addition of visa pages. Civ. No. 07-4509 Mot. for TRO at 1-2. The record is unclear regarding Petitioner's whereabouts. Although recent communications to the Court reflect an address in Taiwan, Petitioner states he is not currently in Taiwan. Objections at 8.
Rule 4 of the Rules Governing Section 2254 cases provides that a district court must dismiss a § 2254 petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 is applicable to § 2241 habeas cases through Rule. 1(b). In reviewing subject matter jurisdiction, this Court relies exclusively on Petitioner's Petitions and exhibits.
Federal jurisdiction exists over petitions for habeas corpus only when the petitioner is in custody:
The writ of habeas corpus shall not extend to a prisoner unless —
(1) He is in custody under or by color of the authority of the United States ...; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States....
28 U.S.C. § 2241(c)(1)-(c)(3). Section 2254 authorizes federal district courts to review habeas claims brought by individuals who are "in custody pursuant to the judgment of a State court." Judge Boylan recommends denial of Petitioner's § 2254 Petition because neither Petitioner's § 2254 Petition nor his numerous memoranda and exhibits suggest that Petitioner is in custody pursuant to the judgment of a Minnesota court. This Court agrees. The plain language of the federal habeas statutes "contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary." Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885) (quoted in Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004)).
Given that Petitioner is somewhere in Asia, it is clear that neither WCCS nor the Secretary of State exercises immediate physical custody over Petitioner. Recognizing this, Petitioner cites the Supreme Court's statement in Padilla that federal courts "no longer require physical detention as a prerequisite to habeas relief." 542 U.S. at 437, 124 S.Ct. 2711. Petitioner argues he is effectively in custody, wherever he is, because he is unable to travel internationally without a passport. However, this Court agrees with Judge Boylan that Petitioner is not in custody as contemplated by the federal habeas statutes. Therefore, Petitioner's Objections to the R & R are overruled and Petitioner's § 2254 Petition is denied.
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