Opinion
No. CV 05-3942-PHX-DGC (GEE).
January 26, 2006
ORDER
Petitioner Enrique Lopez Apizueta, presently confined in the Federal Correctional Institution in Phoenix, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. This Court will dismiss the petition without leave to amend.
A. Petition.
Petitioner originally filed a "Motion to Dismiss Detainer" in the Unit ed States District Court for the Western District of Washington. (Doc. #1). In his petition, Petitioner asserts that he was born and raised in Cuba, and fled from there as a refugee. Petitioner states that he was sentenced to 87 months' imprisonment and 5 years' supervised release for a federal drug conviction. As a result of a detainer lodged by the Immigration and Naturalization Service (INS), Petitioner is ineligible for a program which takes a year off his sentence if he has successfully completed the prison's drug rehabilitation program. Further, because of the detainer, Petitioner is ineligible for six months' placement in the Community Correction Center. Thus, the detainer effectively results in an additional 18 months of imprisonment. Moreover, Petitioner asserts that pursuant to United States policy, he will not be deported to Cuba, and pursuant to recent Supreme Court decision, he cannot be incarcerated in any way after he has served his sentence. Thus, Petitioner requests that the detainer be removed. The District Court in Washington construed the motion as one brought pursuant to § 2241, and transferred the action to this Court. (Doc. #6).
B. 28 U.S.C. § 2241.
A 28 U.S.C. § 2241 petition "shall not extend to a prisoner unless (1) [h]e is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or (2) [h]e is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or (3) [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241.
Petitioner is not seeking to challenge the validity of the federal detainer, but merely argues that it impermissibly lengthens his sentence by making him ineligible for certain prison programs and that he, as a Cuban, may not be detained as a deportable alien after he has served his sentence. The Ninth Circuit has held that the Bureau of Prison's (BOP) policy of excluding inmates against whom a detainer is lodged from early release or transfer in to a half-way house does not violate the prisoner's constitutional rights. See McLean v. Crabtree, 173 F.3d 1176, 1184-86 (9th Cir. 1999) (providing that the BOP's policy of exclusion does not violate a prisoner's Equal Protection Due Process rights). Moreover, contrary to Petitioner's belief, a deportable alien who is not under a criminal sentence may be detained for at least six months. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Because (1) the BOP's policy of exclusion as to Petitioner is constitutional, and (2) Petitioner may be held in custody even after he has served his sentences, Petitioner's § 2241 pet it ion will be dismissed without prejudice. Petitioner will be provided an opportunity to amend his § 2241 petition.
C. Amendment
Any Amended Petition must be submitted on the court-approved form and signed under penalty of perjury. In particular, Petitioner must list each ground for relief and state the facts supporting each ground. Petitioner is advised that the Amended Petition must be retyped or rewritten in its entirety on a court-approved form and may not incorporate any part of the original Petition by reference. Any Amended Petitioner submitted by Petitioner should be clearly designated as such on the face of the document. The Clerk of Court will be directed to provide Petitioner with a form for filing a § 2241 action.
Petitioner is further advised that an amended § 2241 supersedes the original petition. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Thus, grounds for relief alleged in the original Pet it ion which are not alleged in the amended Petition are waived.King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
D. Rule 41 Cautionary Notice
Petitioner should take notice that if he fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik, 963 F.2d at 1260-61(district court may dismiss action for failure to comply with any order of the Court).
IT IS THEREFORE ORDERED that:
(1) Petitioner's Petition for Writ of Habeas Corpus, 28 U.S.C. § 2241 (Doc. #7) is dismissed with leave to amend. Petitioner shall have 30 days from the date of filing of this Order to file an Amended Petition in accordance with the Court's Order.
(2) The Clerk of the Court shall enter a judgment of dismissal of this action without prejudice and without further notice to the Petitioner if he fails to file a Petition within 30 days of the filing date of this Order.
(3) At all times during the pendency of this action, Petitioner shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOT ICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date. The notice shall not include any motions for any other relief. Failure to file a Notice of Change of Address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure; and
(4) The Clerk of Court is directed to provide to Petitioner a current court-approved form for filing a Petition for Writ of Habeas Corpus by a Person in Federal Custody ( 28 U.S.C. § 2241).
________________________________ Name
________________________________ Prison Number
________________________________ Place of Confinement
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA
vs.
__________________________, (Full Name of Movant)
___________________________________ (Include name under which you were convicted.)
Movant. __________________________________
Case Number (To be supplied by the Clerk, U.S. District Court)
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY ( 28 U.S.C. § 2255)
(If movant has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion in the federal court which entered the judgment.)
INSTRUCTIONS — READ CAREFULLY
(1) This motion must be legibly handwritten or typewritten and signed by the movant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. Where more room is needed to answer any question, use reverse side of sheet.
(2) Additional pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum.
(3) Upon receipt, your motion will be filed if it is in proper order. No fee is required with this motion.
(4) If you do not have the necessary funds for transcripts, counsel, appeal, and other costs connected with a motion of this type, you may request permission to proceed in forma pauperis, in which event you must execute the Declaration on the last two (2) pages, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the Certificate as to the amount of money and securities on deposit to your credit in any account in the institution.
(5) Only judgments entered by one court may be challenged in a single motion. If you seek to challenge judgments entered by different judges or divisions either in the same district or in different districts, you must file separate motions as to each judgment.
(6) Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction.
(7) When the motion is fully completed, the original and two (2) copies must be mailed to:
Phoenix Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 321 U.S. Courthouse, Suite 1500 401 West Washington St., SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
(8) Motions which do not conform to these instructions will be returned with a notation as to the deficiency.
MOTION
1. Name and location of court which entered the judgment of conviction under attack: ___________________________________________________________
2. Date of judgment of conviction: _________________________________________
3. Length of sentence: ___________________ Sentencing Judge: ______________
4. Nature of offense involved (all counts): ________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________
5. What was your plea? (Check one)
(a) Not Guilty ()
(b) Guilty ()
(c) Nolo contendere ()
If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details: _________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________
6. Kind of trial: (Check one)
(a) Jury ()
(b) Judge only ()
7. Did you testify at the trial? Yes () No ()
8. Did you appeal from the judgment of conviction? Yes () No ()
9. If you did appeal, answer the following:
(a) Name of Court: _______________________________________________________
(b) Result: ______________________________________________________________
(c) Date of result: ______________________________________________________
10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any federal court? Yes () No ()
11. If your answer to 10 was "yes," give the following information:
(a) (1) Name of Court: __________________________________________________
(2) Nature of proceeding: _______________________________________________ _________________________________________________________________________
(3) Grounds raised: ________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________
(4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes () No ()
(5) Result: ___________________________________________________________
(6) Date of result: ______________________________________________________
(b) As to any second petition, application, or motion, give the same information:
(1) Name of court: ______________________________________________________
(2) Nature of proceeding: _______________________________________________ _______________________________________________________
(4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes () No ()
(5) Result: _____________________________________________________________
(6) Date of result: _____________________________________________________
(c) As to any third petition, application, or motion, give the same information:
(1) Name of court: ______________________________________________________
(2) Nature of proceeding: _______________________________________________
(3) Grounds raised: _____________________________________________________ ___________________________________________________________________ ___________________________________________________________________ ___________________________________________________________________
(4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes () No ()
(5) Result: ___________________________________________________________
(6) Date of result: _____________________________________________________
(d) Did you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application, or motion?
(1) First petition, etc. Yes () No ()
(2) Second petition, etc. Yes () No ()
(3) Third petition, etc. Yes () No ()
(e) If you did not appeal from the adverse action on any petition, application, or motion, explain briefly why you did not: _______ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________
12. State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same.
CAUTION: If you fail to set forth all grounds in this motion, you may be barred from presenting additional grounds at a later date.
For your information, the following is a list of the most frequently raised grounds for relief in these proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you have other than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully.
If you select one or more of these grounds for relief, you must allege facts in support of the ground or grounds which you choose. Do not check any of the grounds listed below. The motion will be returned to you if you merely check (a) through (j) or any one of these grounds.
(a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea.
(b) Conviction obtained by use of coerced confession.
(c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure.
(d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest.
(e) Conviction obtained by a violation of the privilege against self-incrimination.
(f) Conviction obtained by an unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.
(g) Conviction obtained by a violation of the protection against double jeopardy.
(h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled.
(i) Denial of effective assistance of counsel.
(j) Denial of right of appeal.
A. Ground One: ___________________________________________________________ __________________________________________________________________________ Supporting FACTS (tell your story briefly without citing cases or law): ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
B. Ground Two: ______________________________________________________ __________________________________________________________________________ Supporting FACTS (tell your story briefly without citing cases or law): ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
C. Ground Three: _________________________________________________________ ___________________________________________________________________________ Supporting FACTS (tell your story briefly without citing cases or law): ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
D. Ground Four: ______________________________________________________ _______________________________________________________________________ Supporting FACTS (tell your story briefly without citing cases or law): ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
13. If any of the grounds listed in 12A, B, C, and D were not previously presented, state briefly what grounds were not so presented, and give your reasons for not presenting them: _________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________
14. Do you have any petition or appeal now pending in any court as to the judgment under attack? Yes () No ()
15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein:
(a) At preliminary hearing: _____________________________________________ _____________________________________________________________________
(b) At arraignment and plea: _____________________________________________
(c) At trial: ___________________________________________________________
(d) At sentencing: _______________________________________________________
(f) In any post-conviction proceeding: __________________________________ _________________________________________________________________________
(g) On appeal from any adverse ruling in a post-conviction proceeding: ___ _________________________________________________________________________ ____________________________________________________________
16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at approximately the same time?
Yes () No ()
17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes () No ()
(a) If so, give the name and location of the court which imposed the sentence to be served in the future: _______________________________ ____________________________________________________________________
(b) Give the date and length of sentence to be served in the future: ___________________________________________________________ ___________________________________________________________
(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future?
Yes () No ()
WHEREFORE, movant prays that the court grant him all relief to which he may be entitled in this proceeding.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct:
Executed on ________________ _________________________ (date) Signature of Movant ______________________________ Signature of Attorney (if any)