Smith v. Bogan, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10738
Conference Calendar
CHARMANE SMITH,
Petitioner-Appellant,
versus
J.B. BOGAN, Warden; JAMES SHADDUCK, Psychologist; PAUL E.
COGGINS, U.S. Attorney,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CV-1686-Y
--------------------
December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Charmane Smith, Federal Medical Center (FMC), Carswell
patient #15587-076, moves for leave to proceed in forma pauperis
(IFP) following the district court’s certification that her
appeal is taken in bad faith. Smith has filed numerous motions
apart from her IFP motion; all such motions are DENIED.
Smith seeks to appeal the dismissal of her petition for
habeas corpus relief pursuant to 28 U.S.C. § 2241, a petition in
which she challenged her hospitalization pursuant to 18 U.S.C.

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§ 4246 and the administration of psychotropic drugs. Smith
argues that she attempted to obtain administrative redress by
writing letters to various authorities instead of using BOP’s
grievance forms because institution officials denied her the
grievance forms when she requested them and that the dismissal of
the criminal charges against her did not render her contentions
moot. Smith raises other contentions that are not relevant to
the issues that we need to address.
Smith’s allegation that institution officials denied her
grievance forms is conclusional and does not give rise to any
habeas issue. Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.
1983). Smith wrote numerous letters and requests to
institutional officials; however, those letters and requests did
not follow the administrative remedies process outlined in the
relevant regulations, see 28 C.F.R. §§ 542.14(c)(4), 542.15(a);
they did not evidence an attempt to comply with the
administrative remedies process without using the prescribed
forms.
Smith failed to exhaust her administrative remedies before
proceeding in federal court. The validity of Smith’s commitment
under 18 U.S.C. § 4246 was determined on direct appeal. United
States v. Smith, slip op. at **1-**4 (6th Cir. Mar. 9, 2000)
(unpublished), 2000 WL 282478. Claims raised and rejected on
direct appeal are barred from collateral review. United States
v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986)(28 U.S.C. § 2255
case). To the extent that Smith sought to challenge the validity
of the commitment determination pursuant to 18 U.S.C. § 4246, the

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dismissal of her petition is MODIFIED to operate with prejudice.
See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1498 (2001). Smith did not raise
constitutional challenges to the commitment proceeding on appeal,
nor did she challenge the administration of psychotropic drugs.
Smith, slip op. at **1-**4. The dismissal of Smith’s claims
regarding the administration of drugs and possible constitutional
infirmities in the commitment proceeding without prejudice for
failure to exhaust administrative remedies was not an abuse of
discretion.
The criminal charges against Smith were dismissed without
prejudice. Smith, slip op. at **2. Because the charges were
dismissed, Smith is not in custody under a criminal sentence, and
no habeas corpus or 28 U.S.C. § 2255 relief is available for any
constitutional violations that may have occurred during the
criminal proceedings or the events giving rise to those
proceedings. See 28 U.S.C. §§ 2241(c)(3), 2255 ¶ 1. The
district court therefore did not err by dismissing Smith’s claims
regarding the criminal proceedings as moot.
Smith’s appeal is without arguable merit and is frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Smith’s
IFP motion is denied, and her appeal is dismissed as frivolous.
IFP DENIED; JUDGMENT MODIFIED; APPEAL DISMISSED. 5TH CIR.
R. 42.2.

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