Opinion
Civil Action 99-2457 (JBS)
October 5, 1999
Juan Montoya, Reg. No. 38762-054, Fort Dix, New Jersey, PetitionerPro Se.
Faith S. Hochberg, United States Attorney, By: Dorothy J. Donnelly, Assistant U.S. Attorney, Trenton, New Jersey, for Respondent.
MEMORANDUM OPINION
This matter is before the Court on application of Petitioner Juan Montoya for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Because Montoya seeks relief that was available only from the sentencing court on a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, and for reasons set forth below, the Court will deny the application.
BACKGROUND
On April 12, 1994, the United States District Court for the Southern District of New York sentenced Montoya to 87 months imprisonment with four years supervised release after he was convicted in that court of conspiracy to possess and distribute cocaine. His projected release date is October 4, 2002 via good conduct time. (Pet. ¶ 5.) Montoya now files a § 2241 petition in this Court, claiming that, when he was arrested, federal agents violated his rights under the Vienna Convention when they denied his request to call the Colombian consulate for assistance in finding a Spanish speaking attorney. Montoya also claims that he was unable to file a direct appeal because he was unable to communicate with his attorney in English after sentencing. (Pet. "Statement of the Case.") Lastly, Montoya alleges that his defense counsel during trial proceedings was ineffective because the attorney failed to present any possible defense, failed to discuss his defense options, and failed to request a "minimal participation" downward departure. As relief, Montoya requests that this Court "order the government to comply with its international legal obligations by dismissing the indictment or reverse and remand the case to Status Quo Antes." (Pet. "Conclusion.")
DISCUSSION
In the present case, although Montoya's petition is styled as a petition for writ of habeas corpus under § 2241, Montoya cites § 2255 as the basis for relief for his loss of appellate rights and ineffective assistance of counsel claims. (Pet. at 6.) The Court finds that Montoya has thus conceded that those claims may only be raised in the court which imposed the sentence which he now is serving. Because his claim for § 2255 relief on those grounds had to be presented to the sentencing court in the Southern District of New York, this Court may not entertain those grounds and the petition will be dismissed.
For his remaining claim — that his conviction is unconstitutional because the manner of his arrest violated the Vienna Convention — Montoya appears to rely upon 28 U.S.C. § 2241 as the basis for relief. For reasons explained below, however, Montoya's Vienna Convention claim would be cognizable only under 28 U.S.C. § 2255, not § 2241.
Section 2241 constitutes the general habeas corpus statute under which federal prisoners may seek relief for claims of unlawful custody. A petition brought under § 2241 challenges the very fact or duration of physical imprisonment, and seeks a determination that the Petitioner is entitled to immediate release or a speedier release from that imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 484-86, 500 (1973). See also Benson v. New Jersey State Parole Board, 947 F. Supp. 827, 829-31 (D.N.J. 1996) (noting § 2241 generally appropriate only for claims challenging continued execution of sentence for which immediate or speedier release is appropriate).
Because Montoya is a federal prisoner attacking the legality of his conviction, however, a petition under § 2255 is the proper method for addressing Montoya's claims. Indeed, "[e]ver since 1948, when Congress enacted § 2255 to allow for collateral review of the sentences of federal prisoners in the trial court, that section, rather than § 2241, has been the usual avenue for federal prisoners seeking to challenge the legality of their confinement." In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997);see also United States v. Walker, 980 F. Supp. 144, 145-46 (E.D.Pa. 1997) (challenges to a sentence as imposed should be brought under § 2255, while challenges to the manner in which a sentence is being executed should be brought under § 2241). Section 2255 provides, in pertinent part:
An application for a writ of habeas corpus [under § 2241] in behalf of a prisoner authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant 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 the detention.28 U.S.C. § 2255.
Congress amended § 2255 as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"). As of the AEDPA's effective date of April 24, 1996, a motion to vacate, correct or set aside a sentence under § 2255 must be filed in the sentencing court within one year of the latest of (1) the date on which the judgment of conviction became final; (2) the date of the removal of any impediment to making such a motion that was created by unlawful government action; (3) the date on which a right asserted by a movant was first recognized by the Supreme Court and made retroactive to cases pending on collateral review; or (4) the date on which the movant could have discovered the facts supporting the claim[s] presented through the exercise of due diligence. Id. Furthermore, once a prisoner has filed one § 2255 motion, he may not file another unless he first obtains a certification from a panel of the appropriate court of appeals permitting him to do so on the grounds of (1) newly discovered evidence that would clearly and convincingly negate the possibility that a reasonable factfinder would have found the movant guilty of the offense charged, or (2) a previously unavailable and retroactively applicable new rule of constitutional law. Id.
The Third Circuit recognized in Dorsainvil that there may be some rare situations in which a prisoner who cannot satisfy the gatekeeping requirements of § 2255 should be permitted to proceed under § 2241, but emphasized that a prisoner's inability or failure to comply with those gatekeeping requirements generally does not render § 2255 "inadequate or ineffective" so as to permit resort to § 2241, noting that such a holding "would effectively eviscerate Congress's intent in amending § 2255." Dorsainvil, 119 F.3d at 251.
In the present petition, Montoya admittedly has failed to file a § 2255 motion in the sentencing court, and is now barred from filing a § 2255 claim due to the passage of time. Cognizant of this bar, Montoya instead argues that, because his conviction is unconstitutional as a violation of the Vienna Convention, his petition presents exceptional circumstances which give this Court § 2241 jurisdiction under Dorsainvil. For reasons explained below, however, Montoya's petition does not come within a Dorsainvil exception, and must be dismissed.
In support of his Dorsainvil argument, Montoya puts forward the argument that the arresting agents violated the Vienna Convention. The Vienna Convention provides that arrested foreign nationals should be advised of their right to consult with their consul, and that such consul should be notified upon the foreign national's arrest. See United States Department of Justice Statement of Policy, 28 C.F.R. § 50.5. Further, some federal courts have held that suppression is the proper remedy where federal agents obtain statements in violation of the Convention, and the foreign national is able to establish prejudice on account of the violation. See United States v. Lombera-Camorlinga, 170 F.3d 1241, 1244 (9th Cir. 1999); United States v. Oropeza-Flores, 173 F.3d 862 (9th Cir. 1999). But see United States v. Alvarado-Torres, 45 F. Supp.2d (S.D.Cal. 1999) (right to consul advisement merely cumulative if Miranda warnings given).
As determined by another U.S. District Judge in this vicinage, however, a habeas court lacks subject matter jurisdiction over Vienna convention claims such as Montoya's.Gaviria v. Beeler, Civ. No. 98-1353 (D.N.J. July 8, 1998), aff'd 178 F.3d 1279 (3d Cir. 1999). In Gaviria, the Honorable Joseph H. Rodriguez considered a prisoner's habeas claim that federal authorities violated his rights under the Vienna Convention when, at the time of his arrest, agents never informed him of his right to contact a consular official. Id. at 2. Judge Rodriguez dismissed the prisoner's petition, holding that this court lacked jurisdiction, because the factual inquiries involved in the claim should have been addressed to the sentencing court in the Northern District of Ohio under § 2255. Judge Rodriguez further held that even if it did have proper jurisdiction, the petitioner failed to show how notification of his "right to consul" would have affected the outcome of his case.
Applying the reasoning of Gaviria to this case, the issue of whether petitioner was denied his rights under the Vienna Convention is a factual issue attacking the legality of his underlying conviction which may only be heard by the trial court. With his Vienna Convention claim, Montoya argues that his statements to federal agents should be suppressed due to the Convention violation. This in turn raises important factual questions such as whether he actually was advised of or requested consulate assistance, and whether he was truly denied such assistance. Because his claim addresses factual issues that challenge the legality of his conviction, and does not present a situation where § 2255 relief would have been ineffective, Montoya's Vienna Convention claim could only have been addressed to the sentencing court under § 2255. While Montoya is well beyond the one-year limitation for filing a § 2255 claim, this procedural default does not give rise to § 2241 jurisdiction. Accordingly, this court dismisses Montoya's § 2241 petition for lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus will be dismissed for lack of jurisdiction. The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court on application of petitioner Juan Montoya for habeas corpus relief pursuant to 28 U.S.C. § 2241 2255; and the Court having considered the submissions of the parties, and for the reasons set forth in the accompanying Memorandum Opinion;
IT IS on this ___ day of October, 1999, hereby ordered that petitioner Juan Montoya's petition for writ of habeas corpus is DENIED; and his petition is DISMISSED with prejudice.