Opinion
CIV-20-736-G
09-27-2021
MARCEL MALACHOWSKI, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Marcel Malachowski, a federal prisoner proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). United States District Judge Charles B. Goodwin has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Upon initial review, the Petition should be DISMISSED.
I. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to “summarily dismiss [a] petition without ordering a responsive pleading, ” Mayle v. Felix, 545 U.S. 644, 656 (2005), “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct.
The district court may apply any or all” of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct.
Additionally, district courts are permitted to consider, sua sponte, the timeliness of a habeas petition. Day v. McDonough, 547 U.S. 198, 209 (2006). However, “before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. at 210. Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising the issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred.” Day v. McDonough, 547 U.S. at 210 (internal quotation marks omitted); Thomas v. Ulibarri, No. 06-2195, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007). Finally, a Court may dismiss a habeas petition sua sponte only if the petition is clearly untimely on its face. Kilgore v. Attorney General of Colorado, 519 F.3d 1084, 1085 (10th Cir. 2008).
II. BACKGROUND
On October 31, 2008, Border Patrol agents arrested Petitioner for illegally entering the United States near the Canadian border. (ECF No. 1-2:17). On November 1, 2008, Mr. Malachowski was deemed inadmissible under 8 U.S.C. § 1182(a)(7)(i)(I) and placed in expedited removal proceedings under Section 235(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1). See ECF No. 1-2:19.
On December 24, 2009, Petitioner was convicted in the Northern District of New York in Case No. 08-CR-701. See ECF No. 79, Judgment, United States of America v. Malachowski, Case No. 08-CR-701 (N.D.N.Y. Dec. 24, 2009). In part, the conviction involved the unlawful entry into the United States on October 31, 2008. See ECF No. 19, First Superseding Indictment, United States of America v. Malachowski, Case No. 08-CR-701 (N.D.N.Y. Jan. 14, 2008). The Second Circuit Court of Appeals affirmed the conviction on direct appeal. See ECF No. 290, United States v. Malachowski, Case No. 13-443 (2nd Cir. Mar. 8, 2016). Mr. Malachowski then filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, and the Northern District of New York denied relief. See ECF Nos. 155 & 161, United States v. Malachowski, Case No. 08-CR-701 (N.D.N.Y. Dec. 23, 2016 & July 26, 2018). The Second Circuit Court of Appeals affirmed the denial. See ECF No. 56, Malachowski v. United States, Case No. 18-2501 (2nd Cir. Mar. 26, 2019).
The Court may take judicial notice of the criminal case. See St. Louis Baptist Temple, Inc. v. Federal Deposit Insurance Corporation, 605 F.2d 1169 (10th Cir. 1979) (“Further, it has been held that federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”).
On July 28, 2020, Mr. Malachowski filed the instant habeas petition and supporting brief, under 28 U.S.C. § 2241, alleging four grounds for relief. (ECF Nos. 1 & 1-2). Grounds One through Three challenge the 2008 expedited removal order and Ground Four alleges ineffective assistance of counsel in Case No. 08-CR-701. See ECF Nos. 1:6-8; 1-2:7-12.
III. GROUNDS ONE THROUGH THREE
As stated, grounds one through three of the habeas Petition relate to the November 1, 2008 expedited order of removal. In Ground One, Mr. Malachowski argues that he was “In His Native Right to Be Present” in the Akwesasne Indian Territory where he was arrested because he is a registered North American Indian. (ECF Nos. 1:6; 1-2:8). In Ground Two, Petitioner argues that he had not “entered” the United States as that term is defined for immigration purposes. (ECF Nos. 1:7; 1-2:8-9). And in Ground Three, Petitioner argues that he was “actually innocent” of the removal charges because he qualified as a “lawful permanent resident.” (ECF Nos. 1:7; 1-2:9-11).
The scope of judicial review of orders of removal under § 1225(b)(1) is extremely narrow. With very limited exceptions, “no court shall have jurisdiction to review ... any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1)[.]” 8 U.S.C. § 1252(a)(2)(A)(i). Specifically, no court has jurisdiction to review “a decision by the Attorney General to invoke the provisions of [§ 1225(b)(1)], ” “the application of [that] section to individual aliens, ” or “procedures and policies adopted by the Attorney General to implement [that section].” Id. at § 1252(a)(2)(A)(ii)-(iv). Judicial review of determinations made under § 1225(b)(1) is available in habeas corpus proceedings, but such review is limited to determinations of
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under such section, and
(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee ... or has been granted asylum.Id. at § 1252(e)(2)(A)-(C). Section 1252(e)(5) provides further that:
In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.Id. at § 1252(e)(5). Ground Two as presented by Mr. Malachowski does not fall under any exception under § 1225(b)(1) and the Court should conclude that it lacks jurisdiction over the same. See Macias-Guerrero v. Barr, F.Appx., 2020 WL 4811330, at *1 (10th Cir. 2020) (dismissing petition for lack of jurisdiction, stating: “[t]he avenues for review provided by § 1252(e) are strictly limited and do not apply here.”) (citing Lorenzo v. Mukasey, 508 F.3d 1278, 1281 (10th Cir. 2007)).
Liberally construing the Petition, however, Grounds One and Three arguably fall under Section 1225(b)(1)'s exceptions allowing judicial review, as Mr. Malachowski argues that his Native American status entitled him to have been lawfully present in the United States when he was arrested. See supra. But even if jurisdiction existed over Grounds One and Three, the Court should conclude that both Grounds are time-barred because any challenge to § 1225(b) “may be brought in the United States District Court for the District of Columbia and must have been filed no later than 60 days after the date the challenged section or regulation was first implemented.” Vaupel v. Ortiz, 244 Fed.Appx. 892, 895, 2007 WL 2269444, at *3 (10th Cir. 2007) (citing 8 U.S.C. § 1252(e)(3)(B) & Am. Immigration Lawyers Ass'n v. Reno, 18 F.Supp.2d 38, 46-7, 60 (D.D.C. 1998) (dismissing as time-barred aliens' claims filed beyond the 60-day deadline)). Petitioner's own evidence demonstrates that the removal order was entered on November 1, 2008, nearly twelve years ago. See ECF No. 1-2:19. Thus, the Court should dismiss Grounds One and Three as untimely.
IV. GROUND FOUR
In Ground Four, Petitioner alleges that he received ineffective assistance from his criminal defense attorney in Case No. 08-CR-701 (N.D.N.Y). (ECF Nos. 1:8; 1-2:11). “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity” and “[a] 28 U.S.C. § 2255 petition attacks the legality of detention.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Ground Four attacks the validity of Petitioner's criminal conviction and sentence, and a federal prisoner seeking to challenge his conviction or sentence may do so by seeking a writ of habeas corpus exclusively through 28 U.S.C. § 2255(a). See Prost v. Anderson, 636 F.3d 578, 580 (10th Cir. 2011) (“Congress has told us that federal prisoners challenging the validity of their convictions or sentences may seek and win relief only under the pathways prescribed by § 2255.” (emphasis added)). Because Mr. Malachowski has already filed a § 2255 petition, he would have to file a motion in the Second Circuit Court of Appeals seeking authorization to file a second or successive § 2255 petition in the sentencing court. See 28 U.S.C. §§ 2244(b)(3) & 2255(h). Petitioner has not sought such authorization.
See supra.
The lone exception to § 2255(a)'s exclusivity is found in § 2255(e), known as “the savings clause, ” providing that a federal prisoner may challenge his conviction or sentence by other means if his remedy under § 2255 is inadequate or ineffective.
Specifically, the savings clause states:
An application for a writ of habeas corpus in 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(e).
Under this provision, “a federal prisoner may resort to § 2241 to contest his conviction if but only if the § 2255 remedial mechanism is ‘inadequate or ineffective to test the legality of his detention.' ” Prost v. Anderson, 636 F.3d at 580 (quoting § 2255(e)). Notably, it is the petitioner's burden to show the § 2255 remedy is inadequate or ineffective. Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999); see also Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013) (“It is [the petitioner's] burden to show that he meets § 2255(e)'s savings clause.”). In doing so, “[t]he relevant measure, … is whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion. If the answer is yes, then the petitioner may not resort to the savings clause and § 2241.” Prost v. Anderson, 636 F.3d at 584.
In his Petition and supporting brief, Mr. Malachowski makes no effort to satisfy the savings clause or otherwise argue that § 2255 is “inadequate or ineffective.” See ECF Nos. 1 & 1-2. Because Petitioner has failed to satisfy the savings clause, the Court lacks jurisdiction over Ground Four. See Abernathy v. Wandes, 713 F.3d at 557 (“when a federal petitioner fails to establish that he has satisfied § 2255(e)'s savings clause test- thus, precluding him from proceeding under § 2241-the court lacks statutory jurisdiction to hear his habeas claims.”).
Because the savings clause does not apply, the Court should treat Ground Four of Mr. Malachowski's Petition as an unauthorized second or successive § 2255 motion. At this juncture, the District Court could: (1) dismiss the case, or (2) pursuant to 28 U.S.C. § 1631, transfer the case to the appropriate Court of Appeals, if transfer of the case would be in the interest of justice. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Here, it would not be in the interest of justice to transfer this action to the Second Circuit Court of Appeals because Petitioner cannot satisfy the requirements of 28 U.S.C. § 2255(h), which requires a successive motion to contain:
See Russian v. Hudson, 796 Fed.Appx. 500, 503 (10th Cir. 2019) (affirming dismissal of § 2241 petition which challenged the legality of a federal conviction because petitioner was not able to establish that Section 2255 was inadequate or ineffective).
Section 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
1. newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
2. a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255(h). Mr. Malachowski has not identified any “new evidence” in his Petition and supporting brief or any new rule of Constitutional law made retroactive to his case. See ECF Nos. 1 & 1-2. Thus, it is likely that the Second Circuit Court of Appeals would not authorize a successive petition under Section 2255, and the Court should decline to transfer this portion of the Petition.
V. MISCELLANEOUS
On September 4, 2020, Petitioner filed a “Motion to Supplement and Expedite Proceedings.” (ECF No. 8). In the motion, Mr. Malachowski alleges that he falls into a “high risk” category for contracting COVID-19 due to recurrent bronchial infections exacerbated by smoking cigarettes. (ECF No. 8:3-7). Although Petitioner mentions a “supplement” to the Petition, the motion raises no additional substantive grounds for relief. See ECF No. 8. To the extent Petitioner is requesting “sentence modification/compassionate release, ” see ECF No. 8:2, the Court should DENY the request based on the forgoing rationales and recommended dismissal of the Petition.
VI. SUMMARY
The Court should: (1) dismiss Grounds One and Three as untimely, (2) conclude that it lacks jurisdiction over Ground Two, and (3) treat Ground Four as an unauthorized second or successive petition under 28 U.S.C. § 2255 and decline transfer to the Second Circuit Court of Appeals.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DISMISSED. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 28, 2020, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.