Opinion
3:24-cv-78-KAP
06-03-2024
ALVIN M. THOMAS, Petitioner v. MICHAEL UNDERWOOD, WARDEN, F.C.I. LORETTO, Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Petitioner Thomas filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241. Screening the petition before service, see Rule 4 of the Rules Governing Section [28 U.S.C.§] 2254 Cases in the United States District Courts (Habeas Rules), applicable to Section 2241 petitions through Habeas Rule 1(b), and 28 U.S.C.§ 2243, I recommend that the petition be dismissed without service.
Report
I am submitting this as a Report and Recommendation because preservice dismissal is appropriate: it would be wasteful to serve the matter to determine whether all parties would consent to my jurisdiction.
Petitioner Thomas was convicted of the robbery of a jewelry store and related firearm offenses in the District of the Virgin Islands in January 2015 and sentenced to imprisonment, a three-year term of supervised release, and payment of approximately $700,000 in restitution. In June 2020, Thomas was released to his term of supervision. In November 2022, Thomas' supervision was transferred to the Northern District of Ohio.
In June 2023, the Northern District of Ohio revoked Thomas' supervised release, sentenced Thomas to one day's imprisonment, and reimposed a term of three years minus one day of supervised release. Thomas took a counseled appeal to the Sixth Circuit, which affirmed the sentence on April 14, 2024. United States v. Thomas, No. 23-3578 (6th Cir. April 18, 2024)(attached hereto). Last week, Thomas filed an untimely pro se Petition for Panel Rehearing (attached hereto).
Meanwhile, the district court held a second revocation proceeding in December 2023, revoked Thomas' supervised release again, and sentenced Thomas to six months imprisonment with the balance of the term of supervised release to follow. Thomas filed this petition in April 2024, seeking immediate release from this second sentence.
Thomas claims that the district court had no jurisdiction to sentence him. Although he telescopes events and leaves others out, Thomas' argument relies on the allegation that the Virgin Islands never transferred jurisdiction to the Northern District of Ohio. Petition at 4; Motion for Summary Judgment Declaration of Facts ¶ 3.
Thomas' conclusory claim that the sentencing court lacked jurisdiction, supported only by the allegation that a clerk told him over the telephone that there was no transfer order, is inadequate even to call for further proceedings. Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). Petitions must “specify all the grounds for relief” and set forth “facts supporting each of the grounds thus specified.” 28 U.S.C.§ 2254 Rule 2(c), applicable to § 2241 petitions through Habeas Rule 1(b)). A petition is not an opening salvo that invites the court to act as petitioner's investigator.
Thomas's claim here that the Northern District of Ohio lacked jurisdiction because “no such [transfer] order was ever issued,” Motion for Summary Judgment Declaration of Facts ¶ 3, is inconsistent with Thomas' allegation in the Sixth Circuit that the Northern District of Ohio received a transfer order but that the order was invalid because the Virgin Islands had failed to docket it, seal it, or certify it properly. See Petition for Panel Rehearing at 2. Thomas cannot obtain relief on the basis of scattershot contradictory allegations. Even if Thomas proved clerical defects in the sentencing court's records, they would not have deprived it of subject matter jurisdiction, because of the limited nature of the concept of lack of subject matter jurisdiction. See United States v. Cotton, 535 U.S. 625, 630-31 (2002)(defects in indictment do not affect jurisdiction of trial court). The petition must be dismissed.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. Parties are advised that in the absence of timely and specific objections any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017)(describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).
Notice by U.S. Mail to:
Alvin M. Thomas, Reg. No. 09468-094
F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630