Mubang v. Warden, Hazelton Secure Female Facility, Civil Action No. 1:18cv181
| Decision Date | 22 January 2020 |
| Docket Number | Civil Action No. 1:18cv181 |
| Parties | THERESA SIRRI MUBANG, Petitioner, v. WARDEN, Hazelton Secure Female Facility, Respondent. |
| Court | U.S. District Court — Northern District of West Virginia |
(Judge Kleeh)
On September 24, 2018, the pro se petitioner, an inmate at Hazelton Secure Female Facility ("HSFF") in Bruceton Mills, West Virginia, filed an Application for Habeas Corpus pursuant to 28 U.S.C. §2241. The petitioner's $5.00 filing fee, paid in a prior iteration of this case, was applied to the instant one. See ECF No. 3.
By Miscellaneous Case Order entered on November 1, 2018, this case was reassigned from Senior District Judge Irene M. Keeley to District Judge Thomas S. Kleeh. ECF No. 7.
On February 26, 2019, the Court undertook a preliminary review of the petition and determined that summary dismissal was not warranted. ECF No. 10. Accordingly, an Order to Show Cause was issued against Respondent. Id. On March 26, 2019, Respondent filed a Motion to Dismiss or Alternatively, Motion for Summary Judgment with a Memorandum in Support with attached Exhibits. ECF Nos. 13, 14. Because Petitioner was proceeding pro se, on March 27, 2019, a Roseboro Notice was issued. ECF No. 15. On May 1, 2019, Petitioner filed her response in opposition. ECF No. 18. On May 6, 2019, Respondent filed a reply. ECF No. 19. On May 13, 2019, Petitioner filed a Motion to Dismiss Respondent's Surreply or Surrebuttal. ECF No. 20. On May 17, 2019, Respondent filed a response in opposition to Petitioner's Motion to Dismiss Respondent's Surreply or Surrebuttal. ECF No. 21. On July 29, 2019, Petitioner filed a combined motion and Memorandum in Support of her Emergency Motion for Summary Judgment for Consideration and/or Transfer to a Residential Re-Entry Center ("RRC") and Home Confinement Pursuant to 28 U.S.C. [§] 2241 and the First Step Act as Amended. ECF No. 22. On August 23, 2019, Petitioner filed a Supplement to Petitioner[']s Emergency Motion for Transfer to a Halfway House. ECF No. 23. Petitioner filed a Second Supplement on October 24, 2019. ECF No. 24.
This matter is before the undersigned for an initial review and Report and Recommendation pursuant to LR PL P 2 and 28 U.S.C. § 636(b)(1)(B).
In a superseding indictment dated September 27, 2004, a grand jury in the District of Maryland charged the petitioner in Case No. 8:03cr539 with one count of "Holding a Juvenile Alien to a Term of Involuntary Servitude" in violation of 18 U.S.C. § 1584, and one count of "Harboring a Juvenile Alien for Financial Gain," in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). See Docket, District of Maryland, Case No. 8:03cr539, ECF No. 14-2. On November 17, 2004, after a 9-day jury trial, Petitioner was convicted on both counts. Id. Sometime between the verdict and sentencing, the petitioner fled the country and returned to her native Cameroon; on December 6, 2004, the trial court issued a bench warrant for her arrest. Id.
Prior to her conviction in the District of Maryland, Petitioner served two years, eight months, and eight days in federal custody for Health Care Fraud, a violation of 18 U.S.C. § 1347, in Case No. 1:01cr252 in the United States District Court for the Eastern District of Virginia(hereinafter "Eastern District of Virginia"); she was released from BOP custody via Good Conduct Time ("GCT") on March 19, 2004, to begin a three-year term of supervised release. See Declaration of Howard Williams, Legal Assistant, BOP Mid-Atlantic Regional Office ("Williams Decl."), ECF No. 14-1, ¶ 6 at 3; see also Docket, Eastern District of Virginia Case No. 1:01cr252, ECF No. 14-3 at 3.
On February 28, 2005, the petitioner was sentenced in absentia in the District of Maryland in Case No. 8:03cr539 to concurrent terms of 210 months of imprisonment on Count One and 120 months of imprisonment on Count Two, along with three years of supervised release. Judgment was entered on March 1, 2005, and her counsel noted an appeal to the United States Court of Appeals for the Fourth Circuit two days later. Williams Decl., ECF No. 14-1, ¶ 5 at 3.
On April 6, 2005, the petitioner's counsel moved to stay the appeal on the District of Maryland convictions because Petitioner was a fugitive. See Docket, District of Maryland, Case No. 8:03cr539, ECF No. 14-2. The Government responded in opposition and moved to dismiss the appeal. Id. On April 20, 2005, the Fourth Circuit denied the motion to stay and dismissed the appeal, but granted the petitioner leave to move to file an appeal, with good cause shown, if Petitioner surrendered herself to federal custody within 30 days; however, Petitioner did not do so. Id. Instead, as noted supra, she was apprehended in Cameroon on May 26, 2005, and returned to the United States two days later. Id. Although counsel moved to reinstate the appeal on October 7, 2005, the court denied that motion on November 21, 2005. Id.
On May 31, 2005, in Case No. 1:01cr252 in the United States District Court for the Eastern District of Virginia,2 Petitioner was arrested for a violation of her supervised release on the HealthCare Fraud conviction.3 See ECF No. 14-3 at 4. On June 24, 2005, she was sentenced to a six-month term of imprisonment for the supervised release violation, to be served consecutive to the 210-month term of imprisonment imposed in the District of Maryland, for a total aggregate term of imprisonment of 216 months. See Williams Decl., ECF No. 14-1, ¶ 7 at 3 - 4; see also Docket, ECF No. 14-3 at 4.
Counsel for Petitioner filed a § 2255 motion in her District of Maryland case on July 19, 2006, asserting five grounds for relief: (1) her conviction on count one was barred by the statute of limitations; (2) the Government did not timely disclose exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963); (3) she was deprived of her jury trial right because the jury delivered a verdict in "less than two hours;" (4) certain testimony from three other women who lived with the petitioner was improperly admitted; and (5) the evidence was insufficient to establish coercion, a required element under count one. On August 9, 2011, the District Court entered a Memorandum Opinion denying the petitioner's motion to vacate.
On August 12, 2013, in the District of Maryland sentencing court, Petitioner filed a "Motion to Vacate Sentence and Order Immediate Release from Custody as Authorized, Pursuant to 18 U.S.C. § 3742(a) Sentence was Imposed in Violation of Law," seeking to vacate her sentence. See 8:03cr539-DKC. ECF No.133. The District of Maryland construed the motion as being filed pursuant to 28 U.S.C. § 2255. In the motion, the petitioner claimed that her final sentence was imposed in violation of the Ex Post Facto Clause, because she was sentenced under the 2000 version of the United States Sentencing Guidelines ("USSG"). She asserted that because the 2000 guidelines provided for more severe punishment, she should have been sentenced under the 1998USSG, in effect at the time of her offenses. She further alleged that her sentence violated the dictates of Apprendi v. New Jersey4 and Alleyne v. United States.5 Finally, she claimed that the court abused its discretion in sentencing her beyond the statutory minimum term and, in effect, engaged in an "unwarranted sentencing disparity." On August 16, 2013, the District of Maryland entered a Memorandum Opinion dismissing the Motion without prejudice. In so doing, the Court found it lacked jurisdiction because it was a second or successive motion filed under 28 U.S.C. § 2255 which had not been certified in advance by a panel of the appropriate circuit court of appeals. Id. ECF No. 135. On October 9, 2013, the Fourth Circuit Court of Appeal denied the petitioner's motion under 28 U.S.C. § 2244 to file a second or successive application for relief under 28 U.S.C. § 2255.
On November 5, 2013, Mubang filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this district, challenging her court-ordered restitution through the Inmate Financial Responsibility Plan ("IFRP"), seeking to have the court defer payments until she was transferred to a facility with employment opportunity; reduce the payments to $25.00 per quarter; or vacate restitution altogether until she completed her sentence. The case was dismissed by Order Adopting Report and Recommendation on April 16, 2014. See Mubang v. O'Brien, N.D. W.Va. Case No. 2:13cv77June
On November 13, 2013, Mubang filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this district, raising the same grounds she raised in her second or successive § 2255 motion, i.e., that (1) her sentence was imposed in violation of the Fourteenth Amendment'sdue process clause and the holding in Apprendi v. New Jersey; (2) the Court violated the Ex Post facto Clause when it sentenced her to the high end of the guideline range. More specifically, she alleges that she was charged with violating 18 U.S.C. § 1584 during the period 1996 to 1998. The sentencing guidelines in effect at that time contained a statutory maximum of ten years. However, on October 28, 2000, the statute was amended and twenty years was substituted for the ten year maximum; and (3) the court abused its discretion in imposing an unwarranted sentence disparity. . Because Mubang was not eligible to proceed under the 28 U.S.C. § 2255(e) savings clause, the case was dismissed on May 29, 2014. See Mubang v. O'Brien, N.D. W.Va. Case No. 2:13cv78.
On June 20, 2016, in the District of Maryland sentencing court, Petitioner filed a Motion for Sentence Reduction pursuant to 28 U.S.C. § 924, citing to Johnson v. United States, 135 S.Ct. 2551 (2015) as support. Id. ECF No. 141. The District of Maryland construed the same as a Motion to Vacate pursuant to 28 U.S.C. § 2255. On August 1, 2016, the motion was dismissed without prejudice as a second or successive application for relief. ECF No. 144. On September 12, 2016, the ...
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