Opinion
CIVIL 1:23-CV-01851
01-03-2024
JULIO AVILES, SR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Mannion, Judge
REPORT AND RECOMMENDATION
Susan E. Schwab, United States Magistrate Judge
I. Introduction.
In this 28 U.S.C. § 2241 habeas corpus petition, the petitioner, Julio Aviles, Sr. (“Aviles”), attempts to challenge his conviction and sentence. But Aviles, who is currently serving a sentence at United States Penitentiary (“USP”) Lompoc in California, is not in custody in our district. This court does not have jurisdiction over Aviles's claims. Thus, we recommend that the court dismiss Aviles's claims.
II. Background and Procedural History.
Aviles began this action by filing a petition for writ of habeas corpus on November 7, 2023. Doc. 1. And, because he failed to pay the filing fee or submit an application to proceed in forma pauperis, the Clerk of Court filed an administrative order giving Aviles 30 days to do so. Doc. 3. On November 28, 2023, Aviles filed an application to proceed in forma pauperis (doc. 5), which we granted on January 3, 2024. Doc. 9.
But when Aviles began this action, he had another 28 U.S.C. § 2241 habeas corpus petition pending before the Court about the same underlying conviction (“first § 2241 petition”). See Aviles v. United States of America, 1:22-CV-1857, 2023 WL 8418001 (M.D. Pa. July 19, 2023). And on December 4, 2023, the Court adopted Magistrate Judge Carlson's Report and Recommendation and dismissed the first § 2241 petition. Aviles v. United States of America, 1:22-CV-1857, 2023 WL 8373171 (M.D. Pa. Dec. 4, 2023) (dismissing Aviles's first § 2241 petition, which was modeled as a motion brought pursuant to Fed.R.Civ.P. 60, because (1) it was procedurally improper to bring a Fed.R.Civ.P. 60 motion which has no application to civil cases, and (2) construing the motion as a § 2241 petition, such a petition was not available to Aviles without a showing that § 2255 is inadequate or ineffective and Aviles made no such showing). Rather than reproduce the robust procedural history contained in Magistrate Judge Carlson's Report and Recommendation, we briefly summarize the pertinent facts below. Aviles v. United States of America, 1:22-CV-1857, 2023 WL 8418001, *1-*3 (M.D. Pa. July 19, 2023).
Aviles was charged in the United States District Court for the Middle District of Pennsylvania “with various federal drug trafficking crimes and related offenses based, in large part, on evidence obtained pursuant to a search warrant.” United States v. Aviles, 938 F.3d 503, 505 (3d Cir. 2019). “Aviles moved to suppress evidence obtained in the search or, alternatively, for a hearing to challenge the validity of the warrant.” Id. “The District Court denied his motion, and he was convicted on all counts.” Id. The District Court sentenced Aviles to “a term of mandatory life imprisonment pursuant to the Controlled Substances Act, 21 U.S.C. § 841(b)[.]” Id. Aviles appealed “the denial of his motion to suppress evidence obtained pursuant to the search warrant” and the life sentence to the Third Circuit, which “affirm[ed] the District Court's denial of his motion to suppress, but . . . vacate[d] the District Court's sentencing order and remand[ed] for resentencing.” Id. “Ultimately, Aviles was resentenced to a term of 360 months.” Aviles v. United States of America, 1:22-CV-1857, 2023 WL 8418001, *2 (M.D. Pa. July 19, 2023).
“Thereafter, on August 16, 2021, Aviles filed his first motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255” (“§ 2255 motion”). Id. at *3 (citing 1:15-CR-181 (doc. 964)). “In his motion, Aviles again attacked the District Court's decision to deny his suppression motion by way of a claim that his appellate counsel was ineffective, and again arguing that the affiants who obtained the search warrant submitted false information to the magistrate judge and omitted material information, including that the confidential informant used stolen property during one of the controlled buys.” Id. (citing 1:15-CR-181 (doc. 964 at 4)). “The District Court denied the motion to vacate.” Id. (citing 1:15-CR-181 (docs. 1000, 1001)).
After his § 2255 motion was denied, Aviles filed “what [was] essentially a second habeas petition styled as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60[,]” “again challeng[ing] the District Court's denial of his suppression motion[.]” Id. Although Aviles's first § 2241 petition was labeled a Rule 60 motion and filed as a petition under § 2241, the Court “conclude[d] that [it] amount[ed] to an unauthorized second or successive § 2255 motion[.]” Id. Accordingly, the Court found it lacked jurisdiction and dismissed the first § 2241 petition “without prejudice to Petitioner taking whatever action before the Third Circuit he deems appropriate under 28 U.S.C. § 2255 to preserve and present this issue in a second or successive motion to correct his sentence.” Aviles v. United States of America, 1:22-CV-1857, 2023 WL 8373171, *4 (M.D. Pa. Dec. 4, 2023).
Between the time that Magistrate Judge Carlson filed his Report and Recommendation regarding the first § 2241 petition and the time that Judge Mannion adopted that Report and Recommendation, Aviles filed this petition. Doc. 1. Aviles styles this document as a § 2241 petition, and when given the opportunity to check a box on the form petition to indicate what the petition concerns he checked the box next to “a conviction.” Id. at 2. Aviles states that his petition is based on the following grounds:
(1) “Violations on 5th and 14th Amendments, and violation to the Federal Rule of Evidence Rule 404(b)(1).” Id. at 3 (errors in original). Aviles states that he was “[c]onvicted on evidences from another individual crime on November 21, 2013, and the introduction of drugs that was from another individual[.]” Id. (errors in original). Confusingly, Aviles further explains that “those drugs was NOT mentioned, presented to trial jury or even admitted into evidence; but used to convicted petitioner[.]” Id. (errors in original).
(2) “Violations on 5th and 14th Amendment on Due process and Equal Protection of the laws to a person born in United States[.]” Id. (errors in original). Aviles elaborates: “Government and key witness presenting Material perjury factors to Grand Jury and trial Jury, this Material perjury factors deprive petitioner from obtain a fair and impartial trial.... If a person is on ankle bracelet at home cannot be in another place and if a person is on Arizona, is impossible to be in Pennsylvania at the same time serving as enforcer or guard, as Key witness testify under Oath.” Id. (errors in original).
(3) “Violations on the 6th Amendment, in the Confrontation Clause and the introduction of recorded Statements presented on trial[.]” Id. at 4 (errors in original). It is difficult to decipher the facts Aviles offers to support this third ground, but it appears that he complains that the prosecutors used recorded testimony rather than calling the confidential informant as a witness. See id. at 4. Further, Aviles complains again that the confidential informant used stolen property in one of the controlled buys upon which his conviction was based. See id.
(4) “Violations on the 6th Amendment by trial Cousnelor and direct appear counselor[.]” Id. Aviles states that his trial counsel failed to investigate his alibi based on his use of an ankle bracelet and some unspecified medical records. See Id. (“Trial counselor refuse to do the investigation into the ankle
bracelet and medical records in which contradicted key witness and government in 100% totality[.]”). Aviles further states that his appellate counsel “presented erroneous arguments and issues that was prove on the trial that was important, in which show the conviction was obtained under Material perjuries and introduction of wrongful evidence.” Id. (errors in original).
The form petition Aviles completed asks the petitioner to state why a remedy by way of 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of detention. Doc. 1 at 5. We reproduce Aviles's response verbatim:
Is ineffective because-First-The admission of tapes recorded statements give to law enforcement violate the confrontation Clause, once government promes to trial jury the “RCI” will testify, but never took stand; Second-Material perjury by key witness on Grand Jury and Trial Jury when evidence proving 100% contrary of Key witness and government presented; Third - Introduction of evidence from another crime.Id. (footnote added).
Aviles previously defined RCI as “reliable confidential informant.” See doc. 1 at 4.
III. Discussion.
Aviles names the United States of America (“United States”) as the sole respondent in his petition. Doc. 1 at 1. Pursuant to 28 U.S.C. § 2243, the writ of habeas corpus, or order to show cause, shall be directed to the petitioner's custodian. The warden or superintendent of the prison where the petitioner is held is considered the custodian for purposes of a habeas action. Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004). “This is aptly called the ‘immediate custodian rule.'” Anariba v. Director Hudson Count Correctional Center, 17 F.4th 434, 444 (3d Cir. 2021) (citing Padilla, 542 U.S. at 435). “The logic of this rule rests in an understanding that ‘the warden . . . has day-to-day control over the prisoner and who can produce the actual body.'” Id. at 444-45 (quoting Yi v. Maugens, 24 F.3d 500, 507 (3d Cir. 1994); citing Wales v. Witney, 114 U.S. 564, 574 (1885)). “‘This rule . . . serves the important purpose of preventing forum shopping by habeas petitioners.'” Id. (quoting Padilla, 542 U.S. at 447). Because Aviles is incarcerated at USP Lompoc, the Warden of USP Lompoc (“the Warden”) is the proper respondent, not the United States.
Turning to the question of jurisdiction, as the Third Circuit explained, “selection of the proper respondent is critical to the question of jurisdiction because, in habeas challenges to present physical confinement, . . . the district of confinement is synonymous with the district court that has territorial jurisdiction over the proper respondent.” Anariba, 17 F.4th at 445 (internal quotations omitted). In other words, “[a] § 2241 petition must be filed in the district where an inmate is currently incarcerated.” United States v. Perri, No. 23-2243, 2023 WL 5925887, *1 (3d Cir. Sept. 12, 2023). Aviles is incarcerated in the Central District of California. 28 U.S.C. § 84 (identifying counties that comprise the districts of California). We thus find that we lack jurisdiction to consider Aviles's § 2241 petition. See id. (upholding the Eastern District of Pennsylvania's dismissal of a petitioner's § 2241 petition for lack of jurisdiction because the petitioner was incarcerated in the District of New Jersey).
Moreover, we must note that it appears that Aviles is attempting to collaterally attack his sentence via § 2241. But “a federal prisoner seeking to collaterally attack his sentence generally must do so under § 2255[.]” Voneida v. Johnson, No. 22-1264, 2023 WL 8462455, *2 (3d Cir. Dec. 7, 2023). “To that end, § 2255(e) bars a federal prisoner from proceeding under § 2241 unless the § 2255 remedy ‘is inadequate or ineffective to test the legality of his detention.'” Id. (quoting 28 U.S..C § 2255(e)). “Separately, § 2255(h) bars ‘second or successive § 2255 motions unless the motion relies on ‘newly discovered evidence,' § 2255(h)(1), or ‘a new rule of constitutional law,' § 2255(h)(2).” Id. (quoting Jones v. Hendrix, 143 S.Ct. 1856, 1863 (2023)). “The Supreme Court held that § 2255(h)'s limitation on second or successive motions does not make § 2255 ‘inadequate or ineffective[.]'” Id. (citing Jones, 143 S.Ct. at 1863).
Aviles's arguments that § 2255 is “inadequate or ineffective,” however, are simply further allegations of wrongdoing at the trial. Aviles offers no meritorious argument that § 2255 is “inadequate or ineffective” such that a § 2241 petition is procedurally proper.
IV. Recommendation.
For the foregoing reasons, we recommend that the Court dismiss Aviles's petition and close the case.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.