Gonzalez v. Baltazar

• Decision Date: 28 November 2018
• Docket Number: Civil Action No. 17-4238 (JBS)
• Parties: FRANKIE GONZALEZ, Petitioner, v. J. BALTAZAR, Respondent.
• Court: U.S. District Court — District of New Jersey

FRANKIE GONZALEZ, Petitioner,
v.
J. BALTAZAR, Respondent.

Civil Action No. 17-4238 (JBS)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

November 28, 2018

HONORABLE JEROME B. SIMANDLE

Crim. No. 96-114 (JBS)

MEMORANDUM OPINION

SIMANDLE, District Judge:

Petitioner Frankie Gonzalez ("Gonzalez" or "Petitioner") was convicted on November 7, 1996 of conspiracy to violate the RICO Act in violation of 18 U.S.C. § 1962(d) and conspiracy to distribute heroin in violation of 21 U.S.C. § 846. On March 18, 1997, the Honorable Maryanne T. Barry, then of the U.S. District Court for the District of New Jersey, sentenced Gonzalez to two concurrent life terms imprisonment. Gonzalez seeks to vacate, set aside, and correct his sentence pursuant to 28 U.S.C. § 2255, asserting that he is "actually innocent" of his 18 U.S.C. § 1962(d) RICO Conspiracy and 21 U.S.C. § 846 convictions in light of the U.S. Supreme Court cases of Rosemond v. United States, 134 S. Ct. 1240 (2014) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Pending before the Court are Respondent J. Baltazar's ("Respondent") motion to dismiss the § 2255 petition [Docket

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Item 21] and Gonzalez's motion to transfer the § 2255 petition to the U.S. District Court for the Western District of Louisiana, where he is presently confined. [Docket Item 27.] For the reasons explained below, the Court will grant Respondent's motion to dismiss and deny Gonzalez's motion to transfer as moot. The Court finds as follows:

1. Factual and Procedural Background. Following a four-week trial, on November 7, 1996, a jury found Gonzalez guilty of conspiracy to violate the RICO Act in violation of 18 U.S.C. § 1962(d) and conspiracy to distribute heroin in violation of 21 U.S.C. § 846. See United States v. Gonzalez, No. 96-cr-114-3 (D.N.J.). On March 18, 1997, Judge Barry sentenced Gonzalez to two concurrent life terms for the following reasons: "At the top level of a major heroin distribution organization since its inception in 1992. An organization which employed guns and violence and had a government informant murdered. A plan which defendant knew. Defendant participated in all aspects of the organization and, for a significant period of time, was its organizer and leader." United States v. Gonzalez, 401 F. App'x 727, 728 n.1 (3d Cir. 2010) (citing District Court's Judgment). Gonzalez filed a notice of appeal on April 9, 1997, see United States v. Gonzalez, App. No. 97-5168 (3d Cir.), which the Third Circuit denied in a memorandum opinion dated March 13, 1998, and

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the U.S. Supreme Court denied certiorari review on November 30, 1998.

2. On December 13, 1999, Gonzalez filed his first habeas petition pursuant to 28 U.S.C. § 2255 in the U.S. District Court for the District of New Jersey. See Gonzalez v. United States, No. 99-5800-JWB (D.N.J.). The Honorable John W. Bissell denied the petition as untimely because it was filed more than one year after the Supreme Court had denied certiorari. Chief Judge Bissell subsequently denied the issuance of a certificate of appealability, and the Third Circuit likewise denied Gonzalez's request for a certificate of appealability. See Gonzalez v. United States, App. No. 00-3545 (3d Cir.).

3. On April 25, 2017, Gonzalez filed a habeas petition pursuant to 28 U.S.C. § 2241 in the Middle District of Pennsylvania, see Gonzalez v. Baltazar, No. 17-759 (M.D. Pa.), where he was then incarcerated. On May 17, 2017, the Honorable Robert D. Mariani dismissed the petition without prejudice for lack of jurisdiction because Gonzalez had not shown that the remedies available under 28 U.S.C. § 2255 were inadequate or ineffective. See Gonzalez v. Baltazar, 2017 WL 2175804, at *2-4 (M.D. Pa. May 17, 2017).

4. On June 7, 2017, Gonzalez filed the pending habeas petition pursuant to 28 U.S.C. § 2255 in the U.S. District Court for the District of New Jersey. [Docket Item 1.] In the petition

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itself, Gonzalez raised one ground on which he claims he is being held in violation of the Constitution, laws, or treaties of the United States, explicitly incorporating by reference the same ground for relief raised in his § 2241 petition in the Middle District of Pennsylvania [Docket Item 1 at 4], namely that he is "actually innocent" of his 18 U.S.C. § 1962(d) RICO Conspiracy and 21 U.S.C. § 846 convictions in light of the U.S. Supreme Court's decision in Rosemond v. United States, 134 S. Ct. 1240 (2014). [See Docket Item 1-3 at 16.] Gonzalez subsequently filed a "Request to Supplement Ground Two to Petitioner's § 2255(e) 'Savings Clause' § 2241 Writ of Habeas Corpus Pursuant to Fed. R. Civ. P. Rule 15(d)," wherein he additionally requests relief pursuant to the U.S. Supreme Court case of Montgomery v. Louisiana, 136 S. Ct. 718 (2016). [Docket Item 3.]

5. On June 29, 2017, the Court ordered Respondent to file an Answer in response to Gonzalez's § 2255 petition. [Docket Item 2.] The Court subsequently granted Respondent several extensions of time [Docket Items 9, 13, 16, and 20] and, on July 12, 2018, Respondent filed a motion to dismiss Gonzalez's § 2255 petition. [Docket Item 21.] In this motion, Respondent argues, inter alia, that Gonzalez's § 2255 petition should be dismissed for three reasons: (1) the Court lacks jurisdiction over Gonzalez's "successive" § 2255 petition under the Anti-Terrorism

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and Effective Death Penalty Act of 1996 ("AEDPA"); (2) Gonzalez's § 2255 petition is untimely; and (3) if the Court construes the instant petition under 28 U.S.C. § 2241, this Court lacks jurisdiction because Gonzalez is not presently incarcerated in the District of New Jersey. [See generally Docket Item 21-1 (hereinafter, "MTD Br.").] Gonzalez filed opposition to Respondent's motion to dismiss [Docket Item 24], as well as a motion to transfer his habeas petition to the Western District of Louisiana [Docket Item 27], the jurisdiction and District in which he is presently confined.

6. Discussion of Law. Through the 1948 revision of the Judicial Code and...