Opinion
Civil No. 1:17-cv-1718
10-24-2017
GEORGE SEPULVEDA, Petitioner, v. WARDEN J. BALTAZAR, Respondent.
Magistrate Judge Carlson
MEMORANDUM
Before the court is a report and recommendation (Doc. 3) by the magistrate judge in which he recommends that Petitioner George Sepulveda's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 be denied. Sepulveda filed objections to the report and recommendation on October 13, 2017. (Doc. 4.) For the reasons that follow, the report and recommendation will be adopted.
I. Background
Sepulveda is serving multiple life sentences after being convicted in 1997 for racketeering, conspiracy to commit racketeering, murder in aid of racketeering, witness intimidation, and being a felon in possession of firearms. He is currently being housed in the Middle District of Pennsylvania at USP Canaan.
Sepulveda has filed numerous petitions pursuant to 28 U.S.C. § 2255 in this district and in the First Circuit. (See Doc. 3, p. 2.) In the instant case, he brings his action pursuant to 28 U.S.C. § 2241, and argues that his mandatorily imposed life sentences are in violation of the Eighth Amendment to the United States Constitution and that he can proceed by way of § 2241 because § 2255's remedy is inadequate or ineffective to test the legality of his detention. (Doc. 4, p. 3.)
II. Discussion
Sepulveda's first argument is that Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), wherein the Supreme Court held that sentences of life without parole as applied to juveniles were unconstitutional, applies to him. Sepulveda does not dispute that he was not a juvenile at the time of the commission of his crimes. Instead, he argues that there is no test to determine at what biological age adolescence ends and adulthood begins. Regardless of this argument, however, the Supreme Court specifically held in Miller that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eight Amendment's prohibition on 'cruel and unusual punishments.'" Id. at 2460. However, since Sepulveda uses this argument to object to his sentence, it is for the sentencing court to assess this argument.
The magistrate judge very thoroughly addressed the procedural rules and case law on the subject of challenges to a federal conviction or sentence, and properly found that proper procedure in this action required a petition filed pursuant to § 2255 and not § 2241. The fact that the district court and the Court of Appeals for the First Circuit previously denied Sepulveda's prior post conviction claims or denied a motion for leave to file a second of successive § 2255 petition does not afford him relief pursuant to § 2241.
III. Conclusion
Sepulveda has not shown that § 2255 is inadequate or ineffective to test the legality of his sentence. His motion filed pursuant to § 2241 will be dismissed for lack of jurisdiction in this court.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge Dated: October 24, 2017