Opinion
CIV-21-1163-HE
12-14-2021
ADAM HAYAT, Petitioner, v. FNU LNU, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a federal prisoner appearing pro se, has filed this action purportedly seeking relief under 28 U.S.C. § 2241. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the action be transferred to the United States District Court for the District of Colorado.
Rule 4 is applied in the discretion of the undersigned to this 28 U.S.C. § 2241 Habeas Petition. Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts.
I. Background
On May 23, 2018, the United States District Court for the District of Colorado accepted Petitioner's plea of guilty to three counts of Possession of Firearms Not Registered with the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5841, 5845(a)(8), 5861(d), 5871. Courtroom Minutes, United States v. Hayat, No. 17-cr-0075-RBJ (D. Colo. May 23, 2018), Doc. No. 45. The court sentenced Petitioner to, inter alia, time served, and three years supervised release as to each count, to be served concurrently. Judgment in a Criminal Case, United States v. Hayat, No. 17-cr-0075-RBJ (D. Colo. Aug. 15, 2018), Doc. No. 56 at 2-3.
On October 8, 2020, the United States filed a Petition for Warrant on Person Under Supervision. Petition, United States v. Hayat, No. 17-cr-0075-RBJ (D. Colo. Oct. 8, 2020), Doc. No. 63. Therein, the government explained that Petitioner had violated multiple terms of his supervised release. Id. at 1-4. The following day the court issued an arrest warrant for Petitioner. Arrest Warrant, United States v. Hayat, No. 17-cr-0075-RBJ (D. Colo. Oct. 9, 2020), Doc. No. 64. Petitioner was subsequently arrested, and a Preliminary Revocation and Detention Hearing was held on November 23, 2020. Courtroom Minutes, United States v. Hayat, No. 17-cr-0075-RBJ (D. Colo. Oct. 9, 2020), Doc. No. 72. Petitioner waived his right to a preliminary hearing and the court ordered that he be detained. Order of Detention, United States v. Hayat, No. 17-cr-0075-RBJ (D. Colo. Nov. 23, 2020), Doc. No. 74. The court explained:
The underlying case involved leaving pipe bombs in an occupied downtown Denver hotel. The Defendant has diagnosed mental illness that he has treated with medication. But he has apparently gone off his
medication while on supervised release, leading to self-medication with alcohol and illegal substances. He was kicked out of a sober living facility after refusing to submit to a urinalysis and has been in absconded status for several weeks after failing to contact his probation officer. There is expressed concern on the part of the United States and the Probation Officer that without regular medication, the Defendant may pose a danger to the community.Id. at 2-3.
On September 20, 2021, the court found Petitioner was not competent to assist in his own defense. Courtroom Minutes, United States v. Hayat, No. 17-cr-0075- RBJ (D. Colo. Sept. 20, 2021), Doc. No. 133. The court further directed Petitioner “be taken to a federal medical center for competency restoration.” Id. More specifically, the court ordered the following:
1. The defendant is committed to the custody of the Attorney General;
2. The Attorney General shall hospitalize defendant for treatment in a suitable facility for a reasonable period of time, not to exceed four months, as may be necessary to determine whether there is a substantial probability in the foreseeable future that the defendant will attain the capacity to permit him to go forward with the proceedings;
3. Before the expiration of the four-month period, the director of the facility in which the defendant is hospitalized pursuant to this order shall file a report whether or not the defendant's mental condition has improved so as to permit the proceedings to go forward;
4. If it is determined that the defendant has not so improved as to permit the proceedings to go forward, the court shall be advised and the matter shall proceed in accordance with 18 U.S.C. § 4246.Order, United States v. Hayat, No. 17-cr-0075-RBJ (D. Colo. Sept. 22, 2021), Doc. No. 135.
For reasons that are wholly unclear from the record following the Colorado District Court's September 2021 Order directing the Attorney General to hospitalize Petitioner for mental health treatment for a four-month period, Petitioner is currently confined in Grady County Jail located in Chickasha, Oklahoma. By this action, Petitioner challenges his continued confinement, stating, “My so called time served period/probation violation has elapsed time-wise. With no new charges ” Doc. No. 1 at 1.
II. Screening Requirements
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4, Rules Governing § 2254 Cases. “[B]efore 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. 198, 210 (2006). 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 a dispositive 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 ....” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
III. Analysis
A. Cognizable under § 2241
The first issue presented by the Petition, and one that is crucial to the proper adjudication of the same, concerns the relevant statute under which it is brought. A federal defendant seeking to collaterally attack his conviction or sentence generally may do so by filing a habeas petition under either 28 U.S.C. § 2255 or 28 U.S.C. § 2241. The two statutes play different roles and provide different forms of relief in the context of habeas litigation.
A defendant seeking to attack the validity of his conviction or sentence must file a habeas petition under 28 U.S.C. § 2255. See Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016) (“A § 2255 motion is ordinarily the only means to challenge the validity of a federal conviction following the conclusion of direct appeal.”). Conversely, a petition under 28 U.S.C. § 2241 attacks only the execution of a sentence and not the validity of the sentence itself. Licon v. Ledezma, 638 F.3d 1303, 1311 (10th Cir. 2011). The distinction is material in this case because a § 2255 action must be filed in the district that entered the underlying conviction and/or imposed the sentence. Id.; see also Johnson v. Taylor, 347 F.2d 365, 367 (10th Cir. 1965) (“The purpose of section 2255 is to provide a method of determining the validity of a judgment by the court which imposed the sentence, rather than by the court in the district where the prisoner is confined.”). By contrast, a § 2241 petition must be filed in the district where the petitioner is confined. Licon, 638 F.3d at 1311 (citing Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)).
Petitioner initiated this action under 28 U.S.C. § 2241. As noted, a § 2241 petition is an appropriate vehicle for attacking how an underlying criminal sentence is being executed. Here, however, Petitioner has not been sentenced since his supervised release was revoked. Instead, Petitioner is arguing that his original sentence has expired, no new charges have been entered against him, and he should not remain confined. Doc. No. 1 at 1, 2, 4.
As established, while Petitioner is not facing new charges, he is currently being held based on violations of his supervised release. Currently, Petitioner is not subject to a new sentence, but is merely being detained. Based on the circumstances underlying Petitioner's action, the undersigned concludes that the action is most closely analogous to that brought under § 2255 as he is attacking the fact of his confinement, rather than the execution of his sentence. A petition attacking the validity of a criminal conviction or sentence must be brought under 28 U.S.C. § 2 255 and must be brought in the district where the conviction and/or sentence was imposed, which, in this case, is the United States District Court for the District of Colorado.
B. Whether § 2255 is Inadequate or Ineffective
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.
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 Mr. Abernathy's burden to show that he meets § 2255(e)'s savings clause.”).
The Tenth Circuit has explained that finding § 2255 ineffective or inadequate is rare.
Section 2255 has been found to be inadequate or ineffective only in extremely rare and limited circumstances, such as “the abolition of the original sentencing court; the sentencing court's refusal to consider, or inordinate delay in considering, the § 2255 motion; and the inability of a single sentencing court to grant complete relief when sentences have been imposed by multiple courts.” Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010). This is because § 2255(e)'s saving clause “is concerned with process-ensuring the petitioner an opportunity to bring his argument-not with substance-guaranteeing nothing about what the opportunity promised will ultimately yield in terms of relief.” Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011).Jones v. Goetz, 712 Fed.Appx. 722, 727 (10th Cir. 2017). Based on this provision, the relevant inquiry as to whether § 2255 would have been an adequate and effective mechanism to challenge Petitioner's sentence is to determine if he could have raised the same arguments he raises herein had he brought the action under § 2255. Id. (citing Prost, 636 F.3d at 584). “If the answer is yes, then the petitioner may not resort to the savings clause and § 2241.” Goetz, 712 Fed.Appx. at 727 (quoting Prost, 636 F.3d at 584).
There is no discernible reason Petitioner could not have raised his claim in a § 2255 action, rather than bringing it under § 2241. Thus, the undersigned finds Petitioner has not presented a valid reason why the remedy under § 2255 is inadequate or ineffective.
C. Transfer of the Habeas Petition
Having concluded the Petition was filed in the wrong district court and under the wrong statute, the question then becomes whether the Court should dismiss the Petition without prejudice or whether it should be transferred to the United States District Court for the District of Colorado. Pursuant to 28 U.S.C. § 1631, if a civil action is filed in a forum that lacks jurisdiction over the matter, “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 ....” The Tenth Circuit has listed several factors to consider in deciding whether to dismiss or transfer an improperly filed action. Such factors include whether the new action would be time-barred, whether the claims are likely to have merit, and whether the original action was filed in good faith rather than “filed after plaintiff either realized or should have realized that the forum in which he or she filed was improper.” Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006) (quotations omitted).
Here, the undersigned finds the interests of justice warrant transfer of this case. Because Petitioner's criminal proceedings are ongoing and he has not received an additional conviction and/or new sentence, it is likely his action under § 2255 is premature. See, cf., D'Amario v. Davis, 287 Fed.Appx. 636, 637 (10th Cir. 2008) (noting that a petition filed under 28 U.S.C. § 2255 while the federal prisoner's appeal was pending was premature); United States v. Wade, No. 18-cv-01368-RM, 2018 WL 9372458, at *2 (D. Colo. June 5, 2018) (denying a § 2255 habeas petition as premature where direct appeal of underlying conviction was pending (citing United States v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1993) (“Absent extraordinary circumstances, the orderly administration of criminal justice precludes a district court from considering a § 2255 motion while review of the direct appeal is still pending.”)). However, the record provides compelling reasons to transfer this matter to the originating court rather than merely dismissing this action.
As explained above, it appears from the record of Petitioner's underlying criminal case that in September 2021, the Colorado District Court committed Petitioner to the custody of the Attorney General and directed the Attorney General to “hospitalize [Petitioner] for treatment in a suitable facility for a reasonable period of time, not to exceed four months ....” See, supra. Instead, Petitioner is currently confined in the Grady County Jail located in Chickasha, Oklahoma. In light of the precariousness of Petitioner's mental health status, as determined by the Colorado District Court, and the unclear nature of why Petitioner is currently confined in an Oklahoma county jail, the undersigned finds that the interests of justice warrant transferring this action to the United States District Court for the District of Colorado.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, construed as a Petition under 28 U.S.C. § 2255, be transferred to the United States District Court for the District of Colorado. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by January 3rd , 2022. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.