Gonzalez v. U.S.

• Decision Date: 31 May 2001
• Docket Number: No. CIV.A. 01-10073-RGS.,CIV.A. 01-10073-RGS.
• Citation: 150 F.Supp.2d 236
• Parties: Alfonso GONZALEZ, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

Page 236

150 F.Supp.2d 236

Alfonso GONZALEZ, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV.A. 01-10073-RGS.

United States District Court, D. Massachusetts.

May 31, 2001.

Alfonso Gonzalez, Ayer, MA, for Pro se.

MEMO AND ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE

STEARNS, District Judge.

I adopt the well reasoned Report of the Magistrate Judge and her Recommendation that the petition be DISMISSED.

SO ORDERED.

REPORT AND RECOMMENDATION ON PETITIONER'S PRO SE REQUEST FOR SUMMARY JUDGMENT AND FOR LEAVE TO FILE AMENDED PETITION

DEIN, United States Magistrate Judge.

This matter was referred to this court for a report and recommendation on the "Petitioner's Pro Se Request for Summary Judgment" on his petition for habeas corpus relief under 28 U.S.C. § 2241. Also before this court is the "Petitioner's Pro Se Motion for Leave to File Amended Respondent to 28 U.S.C. § 2241 Petition." The motion to amend is ALLOWED. As detailed below, this court recommends that the petitioner's motion for summary judgment be DENIED and that the petition be DISMISSED pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts.

BACKGROUND

On September 23, 1987, the United States Navy frigate MCCLOY encountered the Panamanian tugboat COLOSO II on the high seas. See United States v. Corpus, 882 F.2d 546, 548 (1st Cir.1989). After the COLOSO II refused to grant the MCCLOY permission to board, and while the MCCLOY waited for a statement of no objection from the Panamanian government, the MCCLOY observed numerous bales of marijuana in the wake of the COLOSO II. See id. at 548-49. When the COLOSO II was eventually boarded, the captain and crew were arrested. See id. at 549.

Following a two day jury trial in the United States District Court for the District of Puerto Rico, the captain and the crew members from the COLOSO II, including the defendant, were found guilty of aiding and abetting the possession of marijuana, with an intent to distribute it, in violation of 18 U.S.C. § 2 and 46 U.S.C.App. § 1903(a).¹ See id. at 548. The petitioner was sentenced by that court to a term of thirty (30) years of imprisonment.² The conviction was affirmed on direct appeal by the First Circuit Court of Appeals in United States v. Corpus, 882 F.2d 546, 548 (1st Cir.), cert. denied, 493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989). Thereafter, and following several lower court rulings, the First Circuit confirmed that the petitioner and three of his co-defendants are not eligible for parole. United States v. De Los Santos-Himitola, 924 F.2d 380, 382 (1st Cir.1991).

The petitioner filed a motion pursuant to 28 U.S.C. § 2255 which was dismissed by the Federal District Court for the District of Puerto Rico on May 31, 1991. (See id. at 381; Memorandum of Law in Support of Motion for a Writ of Habeas Corpus Pursuant to Title 28 U.S.C. § 2241 ("Pet' r Mem.") at p. 3). The petitioner then filed a motion pursuant to 28 U.S.C. § 2244 seeking permission from the First Circuit to file a second successive § 2255 petition. (See Pet'r Mem. at pp. 3-4). The First Circuit denied petitioner's request on September 2, 1998. (See id.).

The Current Petition³

The petitioner filed the present petition for habeas relief, dated May 27, 1999, pursuant to 28 U.S.C. § 2241 in the United States District Court for the Southern District of Georgia (CV299-124). (See Pet'r Ex. 1-A). At the time the petition was filed, the petitioner was detained at the Jessup Correctional Institution in Jessup, Georgia. The grounds raised are (1) ineffective assistance of counsel, (2) violation of Federal Rule of Criminal Procedure 32 by failing to allow the petitioner to review his pre-sentence report, and (3) lack of jurisdiction under 46 U.S.C.App. § 1903 in that the vessel was not in jurisdictional waters of the United States. On June 25, 1999, United States District Court Judge Anthony A. Alaimo of the Southern District of Georgia transferred the case to the District of Puerto Rico, ruling that "[w]hile this Court has jurisdiction over this petition, it is the practice of this Court to transfer an action attacking a sentence to the district in which the original criminal proceedings were conducted." (Pet'r Ex. 2-A). The case was assigned to Judge Jose A. Fuste in Puerto Rico and given case number 99-1717(JAF).

On or about October 1999, the petitioner was transferred to the Federal Medical Center-Devens in Ayer, Massachusetts, and he so notified the court in Puerto Rico. (See Pet'r Ex. 3-A). On or about June 27, 2000, the petitioner filed a motion for summary judgment in Puerto Rico, contending that since eleven months had passed from the original filing of his petition and there had been no response to the petition from the government, the court should conclude that there were no issues of material fact in dispute as to his § 2241 petition. (Pet'r Ex. 4-A). Gonzalez then requested an order vacating his sentence. (See id.).

The United States filed an Opposition to Petitioner's Motion for Summary Judgment in Puerto Rico on August 17, 2000. (See Docket # 10, Civil Action No. 99-1717(JAF)). Therein, the government argued that the District of Puerto Rico lacked jurisdiction over the § 2241 petition since the petitioner was not confined in Puerto Rico. In addition, the government argued that the issues raised should properly have been raised on appeal or in a § 2255 petition. Finally, the government claimed that the petition should be dismissed because the petitioner committed a "procedural default" by failing to raise the issues before. For all these reasons, the government claimed, the court lacked jurisdiction over the petition. The government reserved the right to address the petitioner's claims on the merits if ordered to do so by the court.

The petitioner filed an "Objection to the Government's Motion in Opposition" on September 12, 2000, addressing all the points raised by the government. (See Pet'r Ex. 6-A).

On December 18, 2000, Judge Fuste issued an Opinion and Order transferring the case to the District of Massachusetts for further consideration. (See Pet'r Ex. 8-A). The court reasoned that a court issuing a habeas writ under § 2241 must have jurisdiction over the petitioner's custodian. Because the petitioner is now detained in Massachusetts, the court concluded that it did not have jurisdiction over the petitioner's custodian and could not "entertain Petitioner's Section 2241 petition."

Presently pending before this court is petitioner's Motion for Summary Judgment, and the "Petitioner's Pro Se Motion For Leave to File Amended Respondent to 28 U.S.C. § 2241 Petition" by which the petitioner is seeking to add David Winn, the Warden of the Federal Medical Center-Devens, as a respondent. (See Docket # 2). The motion to amend is ALLOWED. This court recommends to the District Judge to whom the case has been assigned that the motion for summary judgment be DENIED. The government had no obligation to respond to the petition on the merits absent a court order, and no such order has been entered. (See Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts). Moreover, the government did respond to the motion for summary judgment in Puerto Rico, rendering petitioner's complaint of no response moot.

This court further recommends that this petition be DISMISSED as the petitioner is not entitled to habeas relief under 28 U.S.C. § 2241.

ANALYSIS

1. Jurisdiction of this Court

The current habeas petition now rests in its third district since it was originally filed. As a result, it would be prudent for this court to first determine whether it has jurisdiction to rule on the merits of the petition. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.2000) ("Federal courts are always under an independent obligation to examine their own jurisdiction, and ... not entertain an action over which it has no jurisdiction") (internal citations omitted). For the reasons detailed below, I conclude that jurisdiction appropriately rests in this court.

"Generally, motions to contest the legality of a sentence must be filed under [28 U.S.C.] § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Id. at 864 and authorities cited. "Under the savings clause of § 2255, however, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is `inadequate or ineffective to test the legality of his detention.' 28 U.S.C. § 2255 ...." Id. at 864-65 and authorities cited. Such petitions under § 2241 contesting the legality of a sentence must also be heard in the custodial court. See Hernandez, 204 F.3d at 865 and cases cited; Lee v. Wetzel, 244 F.3d 370 (5th Cir.2001). Thus, regardless of the basis of a claim, "a § 2241 petition is properly brought in the district court with jurisdiction over the prisoner's custodian (unlike a § 2255 petition, which must be brought in the sentencing court)." United States v. Barrett, 178 F.3d 34, 50 n. 10 (1st Cir.1999), cert. denied, 528 U.S. 1176, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000), and cases cited.

In the instant case, Gonzalez is purporting to proceed under § 2241. For the reasons detailed below, the issues he is raising challenging the legality of his sentence are governed by § 2255. Since, however, both traditional § 2241 claims and § 2241 claims under the savings provision of § 2255 testing the legality of a detention must be brought in the custodial court, jurisdiction is proper in the District of Massachusetts. See Norton v. United States, 119 F.Supp.2d 43, 45 (D.Mass.2000) ("[E]ven where the petitioner challenges the validity, rather than the execution of his sentence ... under § 2241, jurisdiction lies, not in the sentencing court as per section § 2255,...