Rose v. United States
| Decision Date | 20 April 2023 |
| Docket Number | 1:23-cv-00582-CDB (PC) |
| Parties | FARUQ ROSE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of California |
ORDER VACATING ORDER TO PAY FILING FEE OR SUBMIT APPLICATION TO PROCEED IN FORMA PAUPERIS
(Doc. 6)
FINDINGS AND RECOMMENDATIONS TO DISMISS FOR LACK OF SUBJECTMATTER JURISDICTION
Clerk of Court to assign district judge.
Plaintiff Faruq Rose is a federal prisoner in this civil rights action filed under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). On March 2, 2023, Plaintiff commenced this action in the United States District Court for the Eastern District of North Carolina by filing a complaint alleging violations of Plaintiff's Fourth and Sixth Amendment rights. (Doc. 1.) On April 14, 2023, the case was transferred to the Eastern District of California. (Doc. 3.)
Because this Court lacks subject-matter jurisdiction, it is recommended that this case be dismissed without prejudice.
On June 27, 2017, in the Eastern District of North Carolina, Plaintiff was charged in a two-count indictment for possession of cocaine with intent to distribute and conspiracy to possess cocaine with the intend to distribute. United States v. Rose, Case No. 7:17-cr-00069-D-1 (E.D. N.C. June 27, 2017) (Doc. 1). After a two-day trial, a jury convicted Plaintiff of both counts on February 26, 2019, and the district court sentenced Plaintiff to 420 months of confinement and a 5-year period of supervised release. (Id., Docs. 85, 126.)
Plaintiff appealed the district court's final order, final judgment, and sentence to the United States Court of Appeals for the Fourth Circuit. (Id., Doc. 130.) On July 9, 2021, the Fourth Circuit affirmed the conviction and sentence. (Id., Docs. 140, 141.)[1] Plaintiff filed a petition for rehearing en banc, which was denied on July 6, 2021. (Id., Doc. 143.) Plaintiff filed a petition for writ of certiorari before the United States Supreme Court, which was denied on April 18, 2022. (Id., Docs. 145, 146.)
On March 2, 2023, Plaintiff filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Id., Doc. 149.) The motion was signed by Ramona Burgis, but she failed to “state [the] relationship to movant and explain why movant is not signing this motion,” as indicated on the form. (Id. at 12.)
On April 11, 2023, the United States filed a motion to dismiss the petition under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, with a memorandum of law in support. (Id., Docs. 153, 154.) The plaintiff's section 2255 motion and the defendant's motion to dismiss are currently pending before the District Court for the Eastern District of North Carolina.
Concurrently with the section 2255 motion, Plaintiff filed the instant complaint under 42 U.S.C. § 1983, alleging violations of his Fourth, Fifth, and Sixth Amendment rights under the United States Constitution. (Doc. 1.) The complaint bore the same criminal case number, 7:17-CR-69-D, but was styled as Faruq Rose v. United States. (Id.) The Clerk of Court opened a new civil case and filed the complaint under Case No. 5:23-CT-03067-BO (E.D. N.C. Mar. 2, 2023). (Doc. 2.)
On April 14, 2023, construing the complaint as a filing under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), the District Court for the Eastern District of North Carolina entered an order transferring the case to this district under 28 U.S.C. § 1406(a). (Doc. 3.) The court determined that Plaintiff's claims are related to a March 2021 drug trafficking conviction he received in the Eastern District of California, and Plaintiff is currently incarcerated at the United States Penitentiary, Atwater, located in this district. (Id.) For those reasons, the North Carolina District Court found that the Eastern District of California is a more appropriate venue under 28 U.S.C. § 1391(b). (Id.)
The complaint, now before this Court, is titled, “Complaint for Violations of Fourth, Fifth, and Sixth Amendment Rights Under 42 U.S.C. § 1983.” (Doc. 1.) The pleading appears to be subtitled, or alternatively titled, “Plaintiff's Motion to Vacate, Set Aside, or Correct a Sentence: ‘Under 42 U.S.C. § 1983.'” (Id.) These titles suggest that Plaintiff either seeks damages for constitutional violations under Bivens or relief under 28 U.S.C. § 2255.
On its face, however, the pleading appears to be an attempt to appeal a conviction and sentence, as indicated by the Plaintiff's statement of the case:
Violation of Rights 4th and 6th Amendments of Faruq Rose v. United States is an appellate case in which the defendant, Faruq Rose, is appealing his conviction for drug trafficking. Faruq Rose was convicted in the United States District Court for the Eastern District of California in March 2021 and was sentenced to 35 years in prison and 5 years probation [sic]. Faruq Rose appeal [sic] argues that the trial court erred by admitting falsified statements and omitting unquestionable evidence, and that his sentence was disproportionately severe.
(Id. at 4.)
In this pleading, Plaintiff argues that Deputy Gordy conducted a warrantless search of the first package of cocaine in violation of his Fourth Amendment rights. (Id.) Although Task Force Officer Cornell obtained a search warrant to open the second parcel of cocaine, the warrant did not include the first search. (Id.) Plaintiff also argues that the denial of access to legal counsel during critical stages violated his Sixth Amendment rights. (Id. at 8.) Additionally, Plaintiff argues that the system of mass incarceration results in racially disproportionally and disparate outcomes. (Id.) Although not necessary, Plaintiff provides case citations and summaries to several United States Supreme Court decisions on the Fourth Amendment. As relief, Plaintiff requests the Court (Id.)
This Court has searched the Case Management/Electronic Case Files (“CM/ECF”), and Plaintiff has no record of a criminal case or conviction in the Eastern District of California. The instant transferred case is the only case in this district in which Plaintiff is a litigant. The Court also searched the records of the District Courts for the Central, Northern, and Southern Districts of California and the United States Court of Appeals for the Ninth Circuit. CM/ECF reflects no civil or criminal cases concerning Plaintiff in these jurisdictions, either.
CM/ECF records for the Eastern District of North Carolina do reflect that Plaintiff was convicted of drug crimes in United States v. Rose, Case No. 7:17-cr-00069-D-1 (E.D. N.C. Feb. 26, 2019), and was sentenced to 35 years and a 5-year period of supervised release. (Id., Docs. 85, 126, 128.) The allegations of Fourth and Sixth Amendment violations by Gordy and Cornell in the instant complaint were previously raised in Plaintiff's motion to suppress and in the pending motion under 28 U.S.C. § 2255 in the criminal case. (Id., Doc. 56.) The same allegations are addressed by the Fourth Circuit in its opinion affirming Plaintiff's conviction and sentence. United States v. Rose, 3 F.4th 722 (4th Cir. 2021), cert. denied, 142 S.Ct. 1676 (2022).
Under these circumstances, the reference in the complaint to the Eastern District of California-instead of the Eastern District of North Carolina-appears to be a scrivener's error, as this Court lacks any connection to Plaintiff's criminal case.
Federal courts are courts of limited jurisdiction, with the power to hear cases only when authorized by the Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Subject matter jurisdiction is required; it cannot be waived or overcome by agreement of the parties. United Invs. Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (quotingMitchell v. Maurer, 293 U.S. 237, 244 (1934)). The court presumes lack of subject matter jurisdiction until the plaintiff establishes that it exists. Id. A federal court has an independent duty to assess whether federal subject matter jurisdiction exists, whether or not the issue is raised by a party in a motion to dismiss under Rule 12(b)(1). United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). “[T]he district court ha[s] a duty to establish subject matter jurisdiction over the removed action sua sponte.” Id.
Even if Plaintiff's complaint were properly transferred to the Eastern District of California based on venue, the complaint fails to establish subject matter jurisdiction, either facially or factually. The complaint states that this is (Doc. 1 at 4.) Reiterating arguments made before the District Court for the Eastern District of North Carolina, Plaintiff requests the Court to suppress evidence obtained through unlawful searches. (Doc. 1 at 8.) Although Plaintiff requests no other relief, the Court infers from the “appeal” and request to suppress evidence that Plaintiff seeks a reversal of his conviction and/or resentencing.
By statute, “the courts of appeals (other than the United States Court of...
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