Martinez Diaz v. Olsen, CIV. A. 00-980.

• Decision Date: 19 July 2000
• Docket Number: No. CIV. A. 00-980.,CIV. A. 00-980.
• Parties: Hector Samuel MARTINEZ DIAZ, Petitioner, v. Keith E. OLSEN, Warden, F.C.I. Fairton, Respondent.
• Court: U.S. District Court — District of New Jersey

110 F.Supp.2d 295

Hector Samuel MARTINEZ DIAZ, Petitioner, v. Keith E. OLSEN, Warden, F.C.I. Fairton, Respondent.

No. CIV. A. 00-980.

United States District Court, D. New Jersey.

July 19, 2000.

COPYRIGHT MATERIAL OMITTED

Hector Samuel Martinez Diaz, Manchester, KY, pro se.

Office of U.S. Attorney Robert J. Cleary by Paul A. Blaine, Assistant U.S. Attorney, Camden, NJ, for Respondent.

OPINION

IRENAS, District Judge.

Presently before this Court is petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner, Hector Samuel Martinez Diaz ("petitioner" or "Diaz"), was incarcerated at Federal Correctional Institute ("F.C.I.") Fairton when he initiated this proceeding on April 18, 2000. He is presently incarcerated at F.C.I. Manchester in holdover status. Diaz contests the legality and constitutionality of his sentence on twelve grounds and contends that he should be re-sentenced for time served. For the reasons set forth below, petitioner's application is denied.

I. BACKGROUND

On April 28, 1992, petitioner was arrested in St. Croix, Virgin Islands. He was charged with kidnaping for extortion in violation of 14 V.I.C. § 1052(a); first degree rape (two counts) in violation of 14 V.I.C. § 1701(2)(3); and tampering with a witness in violation of 18 U.S.C. § 1512(b). On October 7, 1992, petitioner was sentenced by the District Court for the United States Virgin Islands to serve a life sentence on the kidnaping offense, five years on each count of rape, and ten years for witness tampering.

Petitioner appealed his sentence to the Third Circuit Court of Appeals. On appeal he argued:

(1) that the evidence was insufficient to convict him of kidnaping for extortion; (2) that the trial court abused its discretion in admitting evidence of prior bad acts (police reports of other instances of domestic assault); (3) that the Court abused its discretion in allowing testimony regarding the Battered Women Syndrome; and (4) the court abused its discretion when it denied Appellant's motion to sever one count of witness tampering from the underlying offense.

(Order Dismissing Case.) On February 25, 1993, the United States Government moved to dismiss Diaz's appeal because its motion for reconsideration of Diaz's sentence was pending in the District Court. The Government's motion was granted and on March 17, 1993, the Third Circuit remanded Diaz's case to the District Court for re-sentencing. On March 25, 1993, the District Court re-sentenced Diaz to serve a total of twenty years imprisonment, followed by three years of supervised release. Petitioner's projected release date is January 10, 2009.

On May 10, 1993, petitioner filed a motion to re-open his appeal. This motion was granted on June 28, 1993. On February 17, 1994, the Third Circuit affirmed petitioner's convictions. United States v. Diaz, 17 F.3d 1431 (3d Cir.1994)(unpublished). On September 14, 1994, petitioner filed the first of several motions to reduce his sentence with the District Court. In these motions he asserted "that the assault giving rise to the charges was merely a domestic quarrel which was blown out of proportion...." (Order Dismissing Case)(internal quotations omitted).

On October 31, 1996, while he was serving his sentence at the F.C.I. in Coleman, Florida, petitioner filed a motion entitled "Civil Rights Complaint with Jury Demand" with the Middle District of Florida. The Court construed petitioner's motion as a § 2255 habeas corpus petition and transferred it to the District Court for the United States Virgin Islands, the sentencing court. On May 1, 1997, petitioner's § 2255 petition was denied. On May 9, 1997, petitioner appealed the District Court's denial of his § 2255 petition and moved to construe it as a motion pursuant to 42 U.S.C. § 1983. On September 11, 1997, the Third Circuit dismissed petitioner's claim as frivolous. However, the dismissal did not bar him from filing a subsequent § 2255 petition. On March 16, 1998, petitioner filed a § 2255 petition alleging the following:

(1) that the district court (federal authorities) had no jurisdiction to try the crimes with which he was charged because the crimes did not take place on government owned lands; (2) that the sentence is illegal; and (3) that the sentence should be vacated because the use of prior bad conduct to enhance his sentence violated the double jeopardy clause.

(Order Dismissing Case.)

On August 31, 1998, the District Court of the United States Virgin Islands denied Diaz's § 2255 petition and found him in violation of an October 11, 1994, Order which required that any additional pleadings submitted by petitioner must be certified as new claims and submitted with the required fee. Petitioner did not appeal the sentencing court's denial of his § 2255 petition. Instead, on April 18, 2000, petitioner filed the instant habeas corpus application with this Court pursuant to 28 U.S.C. § 2241.

In his current application, petitioner alleges that: (1) his right to a fair trial and sentence was violated by a sentencing enhancement which was based on a criminal conviction in Puerto Rico that was prosecuted without an indictment; (2) his sentence was erroneously enhanced based on a Florida conviction in which he had entered a plea of nolo contendre; (3) his sentence was erroneously enhanced based on prior bad acts for which he had never been convicted; (4) three local code offenses were unlawfully prosecuted together with one federal offense in order to increase his sentencing base offense level; (5) his criminal history was incorrectly computed based on a prior conviction in Puerto Rico; (6) his guideline range was erroneously calculated; (7) his due process rights were violated during his original sentence and he was subsequently re-sentenced on false information in his Pre-Sentence Investigation Report; (8) he received ineffective assistance of counsel at sentencing and re-sentencing; (9) the retroactive application of Megan's Law, 18 U.S.C. § 4042(b) and (c) and the Bureau of Prisons ("BOP") Program Statement 5141.02 ("P.S.5141.02") violates Due Process, Ex Post Facto, and Double Jeopardy; (10) he should receive a two-point downward departure based on post-conviction educational and rehabilitative achievements; (11) the sentencing restriction that prohibits contact with his ex-common law wife and biological minor children is unconstitutional; and (12) that he is entitled to an evidentiary hearing to test the constitutionality of his conviction or confinement.

II. DISCUSSION

A. Jurisdiction

A habeas petitioner who seeks to challenge the legality of his sentence must file a habeas corpus petition under 28 U.S.C. § 2255 with the sentencing court, while a petitioner who challenges the execution or manner of his sentence, must file one under 28 U.S.C. § 2241 in the custodial court. See Wright v. United States Board of Parole, 557 F.2d 74, 77 (6th Cir.1977) (citations omitted)(holding that § 2255 claims concern the imposition of the sentence while § 2241 claims concern the execution of the sentence). Section 2255 claims concern a prisoner's trial and sentencing, including such claims as ineffective assistance of counsel, misapplication of the sentencing guidelines or the constitutionality of the trial. See generally United States v. DeRewal, 10 F.3d 100 (3d Cir.1993)(asserting ineffective assistance of counsel claim under § 2255); Garcia v. United States, 15 F.Supp.2d 367, 374 (S.D.N.Y.1998)(recognizing that relief under § 2255 is available for constitutional errors); United States v. Marmolejos, 140 F.3d 488 (3d Cir.1998)(attacking the misapplication of the sentencing guidelines under a § 2255 motion). Section 2241 claims concern a prisoner's incarceration after the fact of trial and sentencing, including continued incarceration after the scheduled release date, parole hearing issues, or misconduct within the prison system. See Liebman & Hertz, Federal Habeas Corpus Practice and Procedure (2d Ed.), vol. 2, pp. 1184-1190.

In this case, all but one of petitioner's claims, Ground Nine, attack the fairness and validity of his sentence and concern the imposition of his sentence. Ground Nine questions the constitutionality of applying the registration and notification provisions outlined in 18 U.S.C. § 4042 and P.S. 5141.72 to him retroactively and the application of federal law to his Virgin Islands sex offender conviction. Because Ground Nine concerns petitioner's post-sentence status, the Court will address it in the present § 2241 motion. Petitioner's remaining eleven claims in this § 2241 petition are similar to the challenges to his sentence brought in his previous § 2255 application.

Section 2255 expressly provides:

An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255 (emphasis added). In In re Dorsainvil, the Third Circuit interpreted this section of § 2255 and held that a petitioner may dispute the legality of his sentence pursuant to § 2241 rather than § 2255 only when he shows that the remedy provided by his § 2255 motion was "inadequate or ineffective." 119 F.3d 245 (3d Cir.1997). Petitioner has not attempted to satisfy this showing. An "inadequate or ineffective" remedy is not simply one with which a petitioner is unsatisfied. This Court has stated that, "[i]t does not permit a litigant unhappy with the result of his first § 2255 petition a second bite at the apple merely by placing a § 2241 caption on the pleading." Smith v. United States, No. 97-6057, 1998 WL 351785, *6 (D.N.J. May 12, 1998). Because petitioner's remaining eleven claims are...