Opinion
CA 00-0346-AH-C
April 21, 2000.
REPORT AND RECOMMENDATION
On April 17, 2000, Billy Allen, a federal prisoner confined in Elkton, Ohio, filed a habeas corpus petition seeking relief pursuant to 28 U.S.C. § 2241 on a court-provided form. ( See Doc. 1) He has also filed a "MOTION FOR CLASS ACTION SANCTION AND FOR APPOINTMENT OF COUNSEL" pursuant to Rule 23, Federal Rules of Civil Procedure. ( See Doc. 2) His petition attacks criminal convictions and sentences rendered in this Court on July 17, 1996 that sent the petitioner to prison for 260 months. (Doc. 1, p. 2) Having reviewed the petition and Allen's criminal conviction, sentencing, appeal, and collateral attacks, it is determined that this Court lacks subject matter jurisdiction to entertain this petition because this is not the district court for the district in which Allen is incarcerated. Alternatively, petitioner's § 2241 petition should be dismissed because the attack which petitioner is attempting to make on his convictions and sentences is not cognizable under § 2241 as a matter of law.
FINDINGS OF FACT
1. On October 5, 1990, Billy Allen was convicted in this Court by a jury of his peers on counts 1, 3 and 5 of the indictment on charges that he conspired to possess with the intent to distribute cocaine, that he conspired to import cocaine into the United States and that he possessed, with the intent to distribute, cocaine. United States v. Diaz, 26 F.3d 1533, 1538 (11th Cir. 1994) cert. denied, 513 U.S. 1134 (1995); United States v. Marino et. al., CR 90-00052-CB, Doc. 25. Petitioner was originally sentenced to 328 months on each count with the sentences to run concurrently. See id., at Doc. 32. Allen's convictions and sentences were affirmed on appeal. United States v. Diaz, supra. He is presently serving his sentence at a federal corrections facility located in Elkton, Ohio. See Doc. 1, p. 2.
2. On November 15, 1995, Allen filed his first motion pursuant to 28 U.S.C. § 2255. United States v. Marino et. al., supra, at Doc. 41. In this collateral petition, Allen asserted two grounds for relief: "(1) he was denied effective assistance of counsel at trial and on direct appeal; and (2) he [was] entitled to retroactive application of Amendment 505 to the United States Sentencing Guidelines." Id. at Doc. 47, p. 2.
3. Petitioner's § 2255 motion was granted in part and denied in part by the trial court on July 17, 1996. Id. The motion was granted to the extent that his 328 month sentences were reduced to 260 months on each count to be served concurrently, but otherwise denied. Id. On July 7, 1997, Allen's application for a certificate to appeal this decision was denied by the district court. Id., Doc. 50. On July 8, 1998, the Eleventh Circuit Court of Appeals affirmed, on the merits, the decision of the trial court in an unpublished opinion. Id., Doc. 51; Allen v. United States, 150 F.3d 1196 (11th Cir. 1998)(Table), reh'g denied, 167 F.3d 542 (11th Cir. 1998)(Table).
4. On November 12, 1998, Allen filed his second § 2255 motion. United States v. Marino et. al., Doc. 52. The three grounds for relief were articulated by the trial judge as follows: "(1) this Court lacked subject matter jurisdiction because Title 21 of the United States Code has never been effectively promulgated; (2) Title 21 violates the Commerce Clause, Article I, sec. 8, of the United States Constitution; and (3) that his attorney's failing to raise these arguments constituted ineffective assistance of counsel." Id., Doc. 54. Petitioner's motion was denied on May 18, 1999, id., and his motion for a certificate of appealability was denied by this Court on August 27, 1999, id. at Doc. 59, and by the Eleventh Circuit Court of Appeals on January 28, 2000, id.
5. The sole ground for relief listed by petitioner has been phrased as follows: "I have been denied due process and equal protection of the law, access to the Courts of the United States." Doc. 1, p. 3. Attached to the petition is a brief that is identified by the petitioner as the place where one will find supporting facts for the claims that his due process, equal protection and First Amendment access to court rights have been violated. Although the brief is difficult to follow because it combines a number of legal arguments in support of the position that a § 2241 petition should be entertained along with vague factual allegations that are not arranged in a manner to assist the reader in applying them to the Constitutional rights alleged to have been violated, it appears that the focus of petitioner's argument is that he is and always has been unable to read, speak or understand English. This difficulty with the English language has denied him the ability to adequately assist in his defense and to understand his rights. He relates communication problems at trial, on appeal and on collateral attack. He also complains of mistreatment by inmate assistants and the policy of the Bureau of Prisons not to provide access to courts due to a denial of adequate representation to non-English speaking inmates and/or to provide legal research materials published in Spanish. Id.
A review of the Court's record quickly dispels the notion that he has been denied access to this Court. The record contains numerous pleadings that are authored by attorneys on his behalf or by legal assistants during Allen's incarceration.
6. Contrary to the assertions of petitioner, the record in this action reveals that it was determined early in the prosecution that petitioner was able to understand English. First, he was arrested in Miami, Florida and had an initial appearance before Magistrate Judge Peter R. Palermo. Id. at Doc. 2. Judge Palermo's Order establishes that Allen spoke both English and Spanish. Id., Order On Initial Appearance. Second, Allen appeared in this Court for an arraignment on May 30, 1990 and was represented by retained counsel Leonard Rosenberg, Esq. and Claude Boone, Esq. Id. at Doc. 3. He would have been specifically asked during arraignment, if he was able to read, write and understand English. If he had needed an interpreter, that fact would have been obvious to the undersigned at arraignment. And finally, no evidence has been found, after a complete review of record, that petitioner was having problems communicating with counsel or that he was in need of the services of an interpreter. Although it is now alleged that he is experiencing problems in prison because of the Bureau of Prison's failure to make interpretation services available or to provide Spanish copies of law library materials, no similar objections were voiced when the first and second § 2255 motions were filed or in the numerous pro se pleadings filed in reference to those two motions.
Mr. Rosenberg has his practice in Miami, Florida and Claude Boone has his practice in Mobile, Alabama. Both were retained by Allen with Boone serving as trial counsel and Rosenberg as appellate counsel. While Allen does discuss the problems that he encountered at trial due to his inability to communicate with Boone, missing from his brief is any mention of similar problems to communicate with Rosenberg.
CONCLUSIONS OF LAW
1. It is a well-established general rule that a collateral attack on a conviction and sentence should be brought through 28 U.S.C. § 2255 in the federal district court that sentenced the petitioner. See Birdsell v. Alabama, 834 F.2d 920, 922 n. 5 (11th Cir. 1987). The only exception to this general rule allows a petitioner to file such an attack in the district of incarceration, pursuant to § 2241, if the petitioner can show that the remedy provided for under § 2255 is inadequate or ineffective to test the legality of his detention. See Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999).
2. "Section 2241 petitions may be brought only in the district court for the district in which the inmate is incarcerated." Fernandez v. United States, 941 F.2d 1488, 1495 (11th Cir. 1991); but see Price v. Bomberg, 845 F. Supp. 825, 826-827 (M.D.Ala. 1993) ("The Bureau of Prisons in Georgia, which is holding the petitioners, is acting as an agent for the United States Marshal of the Middle District of Alabama, in whose custody the petitioners constructively remain until sentencing. Thus, the petitioners are sufficiently `in custody' in the Middle District of Alabama for the purpose of establishing jurisdiction pursuant to 28 U.S.C. § 2241(a)."), appeal dismissed, 39 F.3d 326 (11th Cir. 1994). Based upon the unequivocal holding in Fernandez, it is determined, in this instance, that this Court does not have jurisdiction to consider this § 2241 petition because the district court of Allen's incarceration is in Ohio. ( see Docs. 1-2). The Court need not halt its analysis at this juncture, however, because it is clear that petitioner's attack on the legality of his convictions and sentences is not cognizable under § 2241.
3. The circumstances under which a petitioner may take advantage of § 2255's savings clause, see 28 U.S.C. § 2255 ("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."), and pursue a collateral attack via § 2241 are very limited. See Wofford, supra, 177 F.3d at 1244.
The savings clause of § 2255 applies to a claim when: 1) that claim is based upon a retroactively applicable Supreme Court decision; 2) the holding of that Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the petitioner's trial, appeal, or first § 2255 motion.Id.
4. It is patently clear in this case that Allen "was not convicted of any crime which a retroactively applicable Supreme Court decision overturning prior circuit precedent has made clear is nonexistent." Id. at 1245. Rather, as previously stated, petitioner's challenge is to the entire criminal process through which he has progressed on the basis that he was not able to understand English, a claim which certainly does not "rest upon a circuit law-busting, retroactively applicable Supreme Court decision." Id. Allen had procedural opportunities to raise his present claim and have it decided at any stage of this criminal action, beginning with his initial appearance before Magistrate Judge Palermo. See id. Thus, his present, but untimely, effort to challenge his convictions and sentences does not fit within the savings clause of § 2255. Id. The failure to raise his claim in a timely manner does not render § 2255 "inadequate or ineffective."
5. The petitioner in this case cannot "use § 2241 simply to escape the restrictions on successive § 2255 motions[,]" inasmuch as it is clear that § 2255's savings clause "does not exist to free a prisoner of the effects of his failure to raise an available claim earlier." Id. (citations omitted).
6. It certainly appears clear that if Allen were now to file a § 2255 motion, that motion would be barred not only by the one-year statute of limitations, see 28 U.S.C. § 2255 ("A 1-year period of limitation shall apply to a motion under this section."), but also by § 2255's rule barring successive petitions, see Wofford, supra, 177 F.3d at 1238. However, the mere fact that a § 2255 petition is procedurally barred by that section's statute of limitations or restriction on successive motions does not make the remedy provided by that motion inadequate or ineffective. See id. at 1245 (Cox, J., concurring specially) ("I also agree that the remedy by motion under § 2255 is not rendered `inadequate or ineffective' because an individual is procedurally barred from filing a second or successive § 2255 motion.").
With respect to prisoners whose convictions became final prior to the April 24, 1996 effective date of the AEDPA, this period began to run on April 24, 1996 and expired on April 23, 1997. Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998).
Prior to filing a third § 2255 petition in this Court, that motion must be certified by a panel of the Eleventh Circuit. 28 U.S.C. § 2244 (b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.").
CONCLUSION
This Court does not have subject matter jurisdiction to entertain Allen's § 2241 petition inasmuch as such a challenge may be brought only in the district court for the district in which petitioner is incarcerated, that is, the appropriate United States District Court in Ohio. Alternatively, Allen's § 2241 petition attacking the legality of the criminal proceedings in this Court and the Eleventh Circuit Court of Appeals should have been brought, at the latest, in one of his two § 2255 petitions. He has thus failed to meet the threshold requirement that he show that the § 2255 motions were inadequate or ineffective. This failure renders a § 2241 petition unavailable as a matter of law. Therefore, it is recommended that petitioner's § 2241 petition be dismissed.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)( en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a `Statement of Objection to Magistrate Judge's Recommendation' within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b). the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.
WILLIAM E. CASSADY, United Satates Magistrate Judge.