Opinion
Civil No. 3:00cv96
August 14, 2000.
REPORT AND RECOMMENDATION
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. However, the question of this court's ability to address the petition does not end there.
In subsequent documents filed with this court, including a Motion to Stay Sentence Pending All Federal Proceedings Related to the Habeas Corpus Petition (Doc. #7) and a letter to the court dated July 29, 2000 petitioner raises a new issue relating to his continued incarceration and subsequent parole violation. That is, petitioner asserts it is a constitutional violation to continue to incarcerate him due to his failure to complete the treatment program. As this issue has not previously been raised with the state court, this court would not be in a position to hear this claim in the first instance.
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). InKuei 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 entertain the habeas action because it did not have jurisdiction over plaintiff's custodian, the official in the State of California who issued the detainer. Id. at 19.
In this case the Department of Correction of the State of Minnesota is deemed the petitioner's custodian for purposes of attacking his conviction and sentencing, even though he was housed in a North Dakota facility. See United States v. Crawford, 477 F. Supp. 266 (M.D.Tenn. 1979) (Discussion of jurisdiction of § 2255 motion being in the district in which the records and witnesses are located). This court does not have jurisdiction over the named defendant. Accordingly, the District of Minnesota is the proper jurisdiction for petitioner's request for writ of habeas corpus challenging his state court conviction.
Due to this court's lack of personal jurisdiction over the defendant, IT IS RECOMMENDED THAT petitioner's motion pursuant to 28 U.S.C. § 2254 be DISMISSED. IT IS FURTHER RECOMMENDED THAT petitioner's Motion for Appointment of Counsel (Doc. # 4), Motion for Production of Recordings (Doc. # 5), Motion by Petitioner Regarding Venue/Jurisdiction (Doc. #6), Motion for Stay of Sentence Pending All Federal Proceedings (Docs. #7 and #8), Motion to Produce Evidence (Doc. # 10), Motion to Compel Production of Evidence (Doc. #11), Motion by Petitioner For Leave to Amend § 2254 (Doc. #13), and Motion by Petitioner for Order for DNA Testing and a Psychologists Evaluation (Doc. #14) be DENIED as MOOT.
Pursuant to Local Rule 72.1(E)(4) any party may object to this report and recommendation within ten (10) days after being served a copy.
Dated this __ day of August, 2000.