Opinion
09 Civ. 1505 (LTS) (KNF).
July 8, 2009
REPORT AND RECOMMENDATION
INTRODUCTION
The petitioner, Albert Leo Berrettini ("Berrettini"), proceeding pro se, made an application for a writ of habeas corpus, in accordance with 28 U.S.C. § 2242 (the "petition"), on February 19, 2009. Berrettini alleged his First, Fourth and Fifth Amendment rights were violated, during a pretrial detainment, and, as a result, "all jurisdiction ceases per 5 U.S.C. [§§] 556(d), 557, 706. . . ." The petition was not served on the respondent.
BACKGROUND
Berrettini is awaiting prosecution, in the United States District Court for the Middle District of Pennsylvania (the "Pennsylvania District Court"), under an eleven-count indictment, charging violations of: 1) 18 U.S.C. § 371 — conspiring to defraud the United States; 2) 26 U.S.C. § 7206(1) — a) filing a false corporate tax return, b) filing a false corporate tax return for a foreign corporation, and c) filing a false income tax return; and 3) 31 U.S.C. § 5314 — filing a false United States Treasury Department form 90-22.1.
On October 14, 2008, the Honorable James F. McClure, United States district judge, ordered the petitioner to appear at a pretrial hearing, on October 23, 2008, in the Pennsylvania District Court. Berrettini failed to appear. Judge McClure ordered Berrettini to appear before him, on October 29, 2008, to show cause why he should not be: (1) held in contempt of court, due to his failure to appear, on October 23, 2008; and (2) "detained pending trial," as a result of his failure to comply with a court order. During the October 29, 2008 proceeding, it was determined, inter alia, that Berrettini: (a) failed willfully to attend the October 23, 2008 proceeding, as ordered, despite his acknowledged receipt of notice to appear; (b) rescinded his signature on the appearance bond issued by the Pennsylvania District Court; and (c) filed documents with the Pennsylvania District Court indicating he is not a United States citizen and "has no intention of appearing at the direction of the court."
The government made a motion, during the October 29, 2008 proceeding, to have Berrettini "committed to the custody of the Attorney General for confinement in a corrections facility. . . ." Judge McClure granted the motion and, further, ordered Berrettini to submit to a "psychological or psychiatric examination . . . conducted by a licensed and certified psychiatrist or psychologist employed by the Bureau of Prisons to determine whether . . . [he] is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."
In February 2009, Berrettini was housed at the Metropolitan Correctional Center, in New York, New York, temporarily, and while there, he filed the instant petition. Thereafter, on March 12, 2009, Berrettini informed the court he was transferred to the Lycoming County Jail, in Williamsport, Pennsylvania. The United States Bureau of Prisons' ("BOP") website confirms Berrettini is "not in BOP custody." Berrettini challenged his detention through the instant petition, however, he was released on bail, pursuant to an order Judge McClure issued on March 25, 2009. Among other things, that order conditioned Berrettini's pretrial release on his executing a $50,000.00 personal recognizance bond, posting $10,000.00 cash, on or before March 27, 2009, and submitting himself to pretrial supervision by the United States Pretrial Services Office. It was also noted in the March 25, 2009 bail order that the petitioner was "found to be fully competent."
The Court has taken judicial notice of the contents of the BOP website regarding the petitioner's status. See Muller-Paisner v. TIAA, 289 Fed. Appx. 461, 466 n. 5 (2d Cir. 2008) (citations omitted). A copy of all unreported cases, to which citation has been made in this document, will be provided to the plaintiff with a copy of this Report. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009).
Berrettini asserts two grounds for relief in his petition: (1) "[h]aving been denied the presumption of innocence, denied due process of law and unlawfully incarcerated apparently as a matter of retaliation, officers of the court have failed and neglected to meet the requirements of at least the 1st, 4th and 5th Amendments to the Constitution for [sic] the United States of America"; and (2) "it is too late now for any bond or trial since due process has been denied per the foregoing and several other instances not given here, once due process is denied, all jurisdiction ceases per 5 U.S.C. [§§] 556(d), 557, 706 . . . This unabated abuse is extremely unreasonable and undermines public confidence (if any remains) in the justice system."
Your Honor referred this matter to the undersigned for a report and recommendation regarding Berrettini's petition for habeas corpus relief. His petition is analyzed below.
DISCUSSION
"In Custody"
The Supreme Court, or a justice thereof, a circuit judge and district courts are empowered to grant a writ of habeas corpus, within their respective jurisdictions, to a federal prisoner who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see 28 U.S.C. § 2241(a); Maleng v. Cook, 490 U.S. 488, 490, 109 S. Ct. 1923, 1925 (1989) (citing 28 U.S.C. § 2254(a)[1]); Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003). The phrase, "within their respective jurisdictions," in this context, has been interpreted by the Supreme Court to mean "nothing more than that the court issuing the writ have jurisdiction over the custodian" of the petitioner, so that the custodian may be directed to: (i) bring the petitioner before the court for a hearing on the application for the writ; or (ii) release the petitioner from custody. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95, 93 S.Ct. 1123, 1129 (1973) ("The writ . . . does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody").
Physical confinement is not the sine qua non of the "in custody" requirement for obtaining habeas corpus relief. See,e.g., Jones v. Cunningham, 371 U.S. 236, 240-43, 83 S. Ct. 373, 376-77 (1963) (paroled prisoner is in custody as contemplated for habeas corpus relief); Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) (citations omitted), cert. denied, Burhlre v. Earley, 127 S. Ct. 3014 (2007) (petitioner in post-release supervision status satisfies the in custody requirement of the writ); United States v. Arthur, 367 F.3d 119, 121-22 (2d Cir. 2004) (citing Hensley v. Municipal Court, San Jose Milpitas Judicial District, 411 U.S. 345, 353, 93 S. Ct. 1571, 1576) (one released on bail or on his own recognizance pending trial or pending appeal is eligible to seek federal habeas corpus relief). In the circumstance of the instant case, Berrettini is "in custody" by virtue of the fact that he is "at liberty [, on conditions of bail,] solely at the discretion" of Judge McClure and remains under a continuing obligation to appear, as ordered, for all pretrial proceedings in connection with the criminal action pending against him in the Pennsylvania District Court. Combs v. Attorney General of the United States, 260 F. Supp. 2d 53, 57 (D.D.C. 2003).
"Because the [petitioner] is at liberty solely at the discretion of [Judge MacClure], and [that] judge[,] at this time[,] is the only authority that can control his pre-detention activity and when the [petitioner's] incarceration [may] commence," the judicial district which has "custody" of the petitioner is the Middle District of Pennsylvania. Combs, 260 F. Supp. 2d at 57. "[T]he BOP at present has no authority over [the petitioner], and will have none until he surrenders to them. . . . '[he] is in custody for [habeas corpus] purposes [] by virtue of the limitations placed upon his liberty by the conditions of his bail. . . .'" Arthur, 367 F.3d at 122 (quoting argument urged by the respondent).
The bail conditions, under which Berrettini is at liberty, "place [the petitioner] in custody[; therefore,] the officials who administer the bail system [] logically should be considered [the petitioner's] custodians." Arthur, id. at 122; see also Hensley, id. at 348-49, 93 S. Ct. at 1573-74. In this case, that means the chief administrative officer of the Pretrial Services Office for the Middle District of Pennsylvania. See Combs, 260 F. Supp. 2d at 55.
The respondent has no authority over the petitioner. Therefore, the court lacks jurisdiction to entertain the petition or issue the writ sought by Berrettini. He must name as the respondent the individual vested with legal control, or "custody," over his person. See 28 U.S.C. §§ 2242 and 2243 ("The writ, or order to show cause shall be directed to the person having custody of the person detained . . . [and t]he person to whom the writ or order is directed shall make a return certifying the true cause of detention"); see also Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S. Ct. 2711, 2717 (2004) (citing 28 U.S.C. §§ 2242 and 2243). Accordingly, Berrettini cannot obtain habeas corpus relief from this court.
However, construing liberally the submission made by Berrettini, a pro se litigant, and reading his petition "to raise the strongest arguments that [it suggests,]" is warranted. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Moreover, "[t]he court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed.R.Civ.P. 15(d). That Rule, when coupled with the guiding principle of Fed R. Civ. P. 1: to construe and administer the rules which "govern the procedure in all civil actions and proceedings in the United States district courts, . . . to secure the just, speedy, and inexpensive determination of every action and proceeding," suggest it would be appropriate for the court,sua sponte, to deem Berrettini's petition amended, to name the chief administrative officer of the Pretrial Services Office for the Middle District of Pennsylvania as the proper respondent, and to transfer Berrettini's petition to the forum in which his liberty is constrained, for further proceedings. See, e.g., Jennings v. United States of America, No. 08-CV-3661, 2009 U.S. Dist. LEXIS 39647, at *13 (E.D.N.Y. April 29, 2009).
RECOMMENDATION
For the reasons set forth above, it is recommended that the instant application for a writ of habeas corpus be: (i) deemed amended to name the chief administrative officer of the Pretrial Services Office for the Middle District of Pennsylvania as the respondent; and (ii) transferred to the United States District Court for the Middle District of Pennsylvania, for further proceedings.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura T. Swain 500 Pearl Street, Room 755, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).