Gibbs v. Thomas, 1:07-cv—01563-SKO-HC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtSheila K. Oberto
Docket NumberNO 1:07-cv—01563-SKO-HC,1:07-cv—01563-SKO-HC
PartiesCURTIS A. GIBBS, Petitioner, v. J. E. THOMAS, Respondent.
Decision Date18 November 2010

CURTIS A. GIBBS, Petitioner,
J. E. THOMAS, Respondent.

NO 1:07-cv—01563-SKO-HC


Filed: November 18, 2010




Petitioner is a federal prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on November 7, 2007, and on behalf of Respondent on June 9, 2010.

Pending before the Court is Respondent's motion to dismiss the petition for lack of subject matter jurisdiction, filed on September 8, 2010. Petitioner filed an opposition (doc. 53) on

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October 7, 2010.1 Petitioner's earlier objection to the motion (doc. 51), filed on September 27, 2010, was deemed by a previous order to be a partial opposition to the motion. No reply was filed.

I. In Personam Jurisdiction pursuant to 28 U.S.C. § 2241 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Petitioner filed his petition for writ of habeas corpus on October 1, 2007. Thus, the AEDPA applies to the petition.

With respect to jurisdiction over the person, 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon the prisoner, but upon the prisoner's custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 (1973). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). It is sufficient if the custodian is in the territorial jurisdiction of the court at the time the petition is filed; transfer of the petitioner thereafter does not defeat personal jurisdiction that has once been properly established. Ahrens v.

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Clark, 335 U.S. 188, 193 (1948), overruled on other grounds in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. at 193, citing Mitsuye Endo, 323 U.S. 283, 305 (1944); Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990).

Petitioner initially named the warden of the United States Penitentiary at Atwater, California, the institution where he was confined at the time the petition was filed; that institution was within the territorial jurisdiction of this Court. The transfer of Petitioner to a different custodial institution did not defeat this Court's jurisdiction. Subsequently, the caption was amended to reflect the name of the warden of the institution to which Petitioner was transferred. (Doc. 17.)

The Court concludes that it has in personam jurisdiction over the Respondent.

The Court has further concluded that it has subject matter jurisdiction to review Petitioner's claims pursuant to 28 U.S.C. § 2241. However, the scope of the Court's subject matter jurisdiction is more thoroughly discussed below in connection with Petitioner's specific claims.

II. Proceeding by a Motion to Dismiss

Title 28 U.S.C. § 2241 provides that writs of habeas corpus may be granted by a district court within its jurisdiction only to a prisoner whose custody is within enumerated categories, including but not limited to custody under the authority of the United States or custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(a), (c)(1), (3).

A district court must award a writ of habeas corpus or issue

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an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rules) is applicable to proceedings brought pursuant to § 2241. Habeas Rule 1(b). Habeas Rule 4 permits the filing of "an answer, motion, or other response," and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This gives the Court the flexibility and discretion initially to forego an answer in the interest of screening out frivolous applications and eliminating the burden that would be placed on a respondent by ordering an unnecessary answer. Advisory Committee Notes, 1976 Adoption. Rule 4 confers upon the Court broad discretion to take "other action the judge may order," including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Id.

The Supreme Court has characterized as erroneous the view that a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. See, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14 (1978). However, in light of the broad language of Rule 4, it has been held in this circuit that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present issues of failure to exhaust state remedies, O'Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990) (a motion to dismiss for failure to raise any issue of federal law,

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which was based on the insufficiency of the facts as alleged in the petition to justify relief as a matter of law, was evaluated under Rule 4); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural default in state court); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n. 12 (E.D.Cal. 1982) (a motion to dismiss for failure to exhaust state remedies is appropriately considered after receipt of evidence pursuant to Rule 7(a) to clarify whether or not the possible defect, not apparent on the face of the petition, might preclude a hearing on the merits, and after the trial court has determined that summary dismissal is inappropriate).

Analogously, a motion to dismiss is appropriate in a proceeding pursuant to 28 U.S.C. § 2241.

Here, Respondent's motion to dismiss is based on lack of subject matter jurisdiction. A federal court is a court of limited jurisdiction which has a continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). Respondent's motion is similar in procedural posture to a motion to dismiss for failure to exhaust state remedies or for state procedural default. Further, the motion does not raise material factual disputes. Finally, Respondent has not yet filed a formal answer.

The Court therefore exercises its discretion to review Respondent's motion pursuant to its authority under Rule 4.

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Further, as the following analysis demonstrates, the Court will deny Respondent's motion to dismiss in part and will exercise its jurisdiction to consider Petitioner's contentions to the extent permissible under the standard of review applicable to a petition brought pursuant to 28 U.S.C. § 2241 to review the proceedings of a court-martial. The record before the Court is sufficient to permit a decision, there are no factual disputes concerning the contents of the record, and the case has been fully briefed.

III. Background

The petition was filed on October 1, 2007, when Petitioner was confined at the United States Penitentiary at Atwater, California. Petitioner challenges his conviction by court-martial of murder pursuant to 10 U.S.C. § 9182 rendered on December 13, 1990. Petitioner is serving a life sentence. (Pet. 2.)3 Petitioner appealed the conviction to the Navy-Marine Corps Court of Military Review and then to the United States Court of

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Military Appeals. (Id.) No contention is made that the crime was not service-related.

Petitioner raises three grounds in the petition: 1) Lt. Col. Stone, a member of the military jury, had prejudicial conversations with other officers and a lawyer about Petitioner's case before the court martial proceedings, concealed them during voir dire, and thereby committed a fraud upon the court and denied Petitioner his rights pursuant to Article 25 of the Uniform Code of Military Justice (UCMJ) and 10 U.S.C. § 825; 2) the prosecution committed gross misconduct and thereby violated Petitioner's rights under the Due Process Clause of the Fourteenth Amendment; and 3) Petitioner's dishonorable discharge was an administrative act that violated 5 U.S.C. § 551 and 32 C.F.R. § 45.3, and therefore Respondent lacks jurisdiction over Petitioner; further, Petitioner is a "Title 10 U.S.C." military prisoner...

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