Grzeskowiak v. Ramstead-Hvass, Civil No. 3:00cv96 (D. N.D. 8/14/2000), Civil No. 3:00cv96.

• Decision Date: 14 August 2000
• Docket Number: Civil No. 3:00cv96.
• Parties: Peter John Grzeskowiak, Plaintiff, v. Cheryl Ramstead-Hvass, State of Minnesota Commissioner of Corrections, Defendant.
• Court: U.S. District Court — District of North Dakota

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Peter John Grzeskowiak, Plaintiff, v. Cheryl Ramstead-Hvass, State of Minnesota Commissioner of Corrections, Defendant.

Civil No. 3:00cv96.

United States District Court, D. North Dakota, Southeastern Division.

August 14, 2000.

REPORT AND RECOMMENDATION

KAREN K. KLEIN, Magistrate Judge.

On or about July 18, 2000 petitioner Peter John Grzeskowiak filed a motion pursuant to 28 U.S.C.§ 2254 (Doc.#3) for a writ of habeas corpus by a person in state custody. The petitioner was incarcerated at the Walsh County Jail in Grafton, North Dakota at the time of his petition. However, his petition challenges the efficacy of his conviction and subsequent sentence, which judgment was entered in the Ninth Judicial District of the State of Minnesota on November 19, 1996. On August 31, 1998 petitioner filed a petition for post conviction relief, to which the State of Minnesota responded. An order was entered by the District Court for the Ninth Judicial District on November 9, 1998 denying petitioner's request for post conviction relief, request for evidentiary hearing and to act pro se in the post conviction relief proceedings. On October 26, 1999 the denial of the petition for post conviction relief was upheld by the Minnesota Court of Appeals, as well as confirmation of the court's determination to deny a stay of appellant's sentence. Further review of the Court of Appeals' decision was denied by the Minnesota Supreme Court on December 14, 1999. As a result of his failure to prevail in the state court petitioner seeks relief pursuant to 28 U.S.C. § 2254.

Title 28 U.S.C. § 2254 provides, in relevant part:

§ 2254 State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (I) there is an absence of available State corrective process, or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

Petitioner's habeas corpus petition asserts the facts on which he was found guilty were wholly insufficient, directly challenging the evidence against him. He also claims that some persons committed perjury in order to arrive at his conviction. Finally, petitioner raises the issue of ineffective assistance of counsel, asserting that defense counsel did not properly object to the admission of past criminal offenses, among other things. A review of the post-conviction relief application and court opinions discloses that these issues have previously been raised, likely satisfying the exhaustion requirement of § 2254.¹ However, the question of this court's ability to address the petition does not end there.

In all of petitioner's filings he has named the Commissioner of Corrections in the State of Minnesota, petitioner's custodian for purposes of a § 2254 motion, as defendant. It is well settled that a court may not entertain a habeas corpus action unless it has personal jurisdiction over the custodian of the prisoner. Kuei Sen-Tung v. United States, 755 F. Supp. 18, 19 (D.C. 1991). In Kuei Sen-Tung, plaintiff was incarcerated in Lewisburg, Pennsylvania on federal charges for which he received a sentence of 20 years. Id. at 18. Sen-Tung then stood trial and was convicted of murder in California. Id. He was sentenced to 27 years to life. Id. He was then returned to federal custody. Id. California lodged a detainer with the federal authorities indicating its intent to incarcerate him subsequent to his federal sentence. Id. In his habeas corpus petition plaintiff claimed that the California sentence was in violation of law. Id. The District of Columbia federal court concluded that it could not...