Dumonde v. Drew et al (INMATE2)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Daniel Lafitte Dumonde, it is the Recommendation of the Mag Judge that the application for habeas corpus relief filed by Petitioner pursuant to the provisions of 28 USC 1651 be denied and dismissed with prejudice; Objections to R&R due by 3/26/2007. Signed by Judge Wallace Capel Jr. on 3/14/07. (vma, )

Dumonde v. Drew et al (INMATE2)

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Case 2:07-cv-00188-MHT-WC

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ D A N IE L LAFITTE DUMONDE P e t i t io n e r , v. D . DREW, WARDEN, et al., R e s p o n d e n ts . _____________________________ * * * * * 2:07-CV-188-MHT (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE B e f o r e the court is Petitioner's pro se application for habeas corpus relief filed under th e provisions of 28 U.S.C. § 1651. He requests that the court release him from confinement b a se d on an illegal conviction. Upon review of the application , the court concludes that the p e titio n is due to be denied and dismissed. I. DISCUSSION P e titio n e r is currently serving a term of 66 months of imprisonment following his c o n v ic tio n for Making, Possessing and Uttering a Counterfeit Security While Aided and A b e tte d by Another Person, in violation of 18 U.S.C. § 513(a) & (2), which was entered a g a in st him by the United States District Court for the Northern District of Alabama.1 It is

On September 15, 2004, following a bench trial, Petitioner was found guilty of violating the provisions of 18 U.S.C. § 513 (a) & (2). The trial court sentenced Petitioner on April 15, 2005 for this conviction. See United States v. Dumonde, Criminal No. 2:04-CR-176-SLB-PWG, available at https://ecf.alnd.uscourts.gov.

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m a tte rs related to this conviction which Petitioner seeks to challenge in the instant a p p lic a tio n for habeas corpus relief. In filing this action, Petitioner maintains that his current c o n v ic tio n is void-ab-intio [sic] and his imprisonment egregious and unjustified, He, th e re f o re , requests that his freedom be restored and that he be released immediately. (Doc. N o . 1.) Petitioner seeks to proceed with this request for habeas corpus relief pursuant to the p ro v is io n s of the All Writs Act, 28 U.S.C. § 1651. The All Writs Act provides, in pertinent p a rt , that "[t]he Supreme Court and all courts established by Act of Congress may issue all w rits necessary or appropriate in aid of their respective jurisdictions and agreeable to the u s a g e s and principles of law." Pennsylvania Bureau of Correction v. U.S. Marshals Service, 4 7 4 U.S. 34, 40 (1985). "[It] is a residual source of authority to issue writs that are not o th e rw is e covered by statute. Where a statute specifically addresses the particular issue at h a n d , it is that authority, and not the All Writs Act, that is controlling. Although that Act e m p o w e rs federal courts to fashion extraordinary remedies when the need arises, it does not au tho rize them to issue ad hoc writs whenever compliance with statutory procedures appears in c o n v e n ie n t or less appropriate." Id. at 43. "The Act does not create any substantive federal ju ris d ic tio n ," but rather, it is only "a codification of the federal courts' traditional, inherent p o w e r to protect the jurisdiction they already have, derived from some other source." Klay v . United Healthgroup, Inc., 376 F.3d 1092, 1099-1100 (11 th Cir. 2004). Furthermore, this s o u rc e of federal court power must only be used in "extraordinary circumstances." Kerr v.

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U .S . Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976). A review of the allegations contained in the instant action reflect that Petitioner seeks to challenge the constitutionality of his 2004 judgment for violating 18 U.S.C. § 513(a) & (2 ) imposed upon him by the United States District Court for the Northern District of A lab a m a . The law is well settled that 28 U.S.C. § 2255 is the proper statute by which to c h a lle n g e the validity of a conviction and/or sentence imposed by a federal court. Procedural lim ita tio n s and/or limitation periods imposed by Congress on the filing of § 2255 motions d o not constitute exceptional circumstances for purposes of sanctioning use of the All Writs A c t to grant Petitioner's desired relief. Allowing Petitioner to proceed in this matter would e x p a n d the use of § 1651 in order to avoid the specific statutory requirements of § 2255 that w o u ld otherwise govern his claims regarding the constitutionality of his federal conviction a n d sentence. In sum, where 28 U.S.C. § 2255 already provides Petitioner the means by which to c h a llen g e the constitutionality of his federal sentence, it is that statute, and not the All Writs A c t, which provides the authority for reviewing Petitioner's alleged unconstitutional federal c o n v ic tio n and sentence. Petitioner sets forth no exceptional circumstances, and the

u n d e rs ig n e d finds none, which would merit the use of extraordinary authority under the p ro v is io n s of the All Writs Act. See Pennsylvania Bureau of Corrections, 474 U.S. at 43. A c c o rd in g ly, because Petitioner cannot circumvent the rules governing § 2255 motions by f ilin g a request for relief under the provisions of 28 U.S.C. § 1651, this instant action is due

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to be denied and dismissed. II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the a p p lic a tio n for habeas corpus relief filed by Petitioner pursuant to the provisions of 28 U.S.C. § 1651 be DENIED and DISMISSED with prejudice. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before March 26, 2007. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on

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S e p te m b e r 30, 1981. D o n e , this 14 th day of March, 2007.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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