Morales-Perez v. Bradley

Filing 5

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/18/2017. (KBB)

FILED
2017 Dec-18 AM 09:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARLENY MORALES-PEREZ,
Petitioner,

v.
WARDEN, PATRICA V.
BRADLEY,
Respondent.

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Civil Action Number
7:17-cv-01301-AKK-JEO

MEMORANDUM OPINION
This is a habeas corpus action filed pursuant to 28 U.S.C. § 2241 by Marleny
Morales-Perez (“Petitioner”), pro se, a federal prisoner at the Federal Correctional
Institution in Aliceville, Alabama. Doc. 1. She is serving an 84-month sentence
imposed by the United States District Court for the Southern District of New York
after she pleaded guilty to a charge of conspiring to distribute controlled substances,
in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. See id. at 1. In her habeas
application, Petitioner brings claims alleging that she is due to be released from
custody and repatriated to Colombia on the grounds that she was prosecuted (1) after
she was unlawfully extradited from that country and (2) after having been entrapped
into violating the law by a confidential source working for the United States Drug
Enforcement Administration. On November 30, 2017, the magistrate judge to whom

the case is referred entered a Report and Recommendation pursuant to 28 U.S.C. '
636(b) recommending that the petition be dismissed for lack of jurisdiction. Doc. 3
(“R&R”)). Petitioner has now filed timely objections to the magistrate judge’s R&R.
Doc. 4.
In his R&R, the magistrate judge characterized Petitioner’s claims demanding
her release from custody because she was purportedly entrapped and unlawfully
extradited as attacking the validity of her federal conviction and sentence. As such,
the magistrate judge reasoned that Petitioner’s claims might be raised only in a
motion to vacate filed in the sentencing court under 28 U.S.C. § 2255 unless habeas
jurisdiction exists pursuant to the “savings clause” of 28 U.S.C. § 2255(e). And, the
magistrate judge opined that the Eleventh Circuit’s narrow reading of the savings
clause in McCarthan v. Director of Goodwill Indust.-Suncoast, Inc., 851 F.3d 1076
(11th Cir. 2017) (en banc), cert. denied, 2017 WL 3036778 (Dec. 4, 2017),
forecloses any exercise of such habeas jurisdiction.
In her objections, Petitioner now contends that the magistrate judge
“misconstrued” her habeas claims. Doc. 4 at 1. In particular, she maintains that she
has raised “claims attacking the legality of [her] extradition order [from Colombia],
not the legality of her conviction, so to speak.” Id. That is, she says, her claims are
not brought “under the so-called savings clause [of § 2255(e)],” but, rather, “are in

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line with the essential purpose of § 2241 Habeas relief,” on the theory that she seeks
“to test the illegality of her Extradition from Perriera, Columbia (sic), where there
was no valid treaty in effect between Columbia (sic) and the United States at the
time.” Id. at 2. “Therefore,” she insists, “she was unlawfully extradited and is
currently unlawfully confined in violation of the 4th amendment and, possibly due
process procedures.” Id.
Unfortunately for Petitioner, her objections, for which she cites no legal
authority, are without merit. Specifically, while Petitioner now disavows that she is
attacking her federal conviction or sentence, a review of the § 2241 habeas form
petition shows she candidly marked the “Yes” box when it asked her, “In this
petition, are you challenging the validity of your conviction or sentence as
imposed?” Doc. 1 at 4, & 10. Moreover, while Petitioner says that her allegations of
“entrapment . . . are relevant to this case,” doc. 4 at 1, she offers no explanation for
how her associated claim by which she demands to be released because she was
entrapped might be viewed as anything other than an attack on her federal
conviction. See generally, e.g., United States v. Aibejeris, 28 F.3d 97, 99 (11th Cir.
1994) (“Aibejeris challenges his conviction for money laundering on the ground that
the government entrapped him.”).

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As for Petitioner’s contention that the court has habeas jurisdiction over her
case because her other claim attacks the legality of the order by which she was
extradited from Colombia, rather than her federal conviction, this contention is also
unavailing. In fact, Petitioner undermines her own arguments. For example,
although Petitioner asserts that habeas jurisdiction exists because she is “in custody
in violation of the Constitution or laws or treaties of the United States,” doc. 4 at 2
(emphasis in original), she claims immediately thereafter that her extradition was
ostensibly illegal specifically because “there was no valid treaty in effect between
Columbia (sic) and the United States at the time.” Id. Similarly, Petitioner also
argues that habeas jurisdiction exists over her extradition-related claim by
emphasizing that the pre-printed § 2241 habeas form she completed says that it is to
be used by a person who is in federal custody “because of something other than a
judgment of conviction,” including because “you are in pretrial detention or are
awaiting extradition . . . or . . . are alleging that you are illegally detained in
immigration custody.” Doc. 4 at 1. However, Petitioner is not detained in
immigration custody or awaiting extradition. Rather, she is in federal prison, serving
a sentence that is authorized by a federal criminal judgment of conviction. Stated
differently, Petitioner’s present confinement is authorized by her federal sentence,
not her extradition order. Therefore, attacking the latter is of no help to the

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Petitioner, as far as the writ of habeas corpus is concerned, unless the illegality of her
extradition bears on the validity of her federal conviction.
Accordingly, Petitioner’s habeas claim by which she demands release from
custody based on the putative irregularity of her extradition also amounts to an
attack on her federal conviction. As such, the magistrate judge correctly concluded
that this court lacks jurisdiction to hear Petitioner’s claim under the savings clause of
§ 2255(e), as construed by the Eleventh Circuit in McCarthan. See Merit v. United
States, 981 F.2d 1258 (table), 1992 WL 361254, *1-2 (9th Cir. 1992) (affirming
district court’s dismissal of habeas action in which federal prisoner sought his
release based on a claim that he was improperly extradited from South Africa);
Ramos v. Hastings, 2014 WL 317367, at *3 (S.D. Ga. Jan. 28, 2014) (holding that
claims alleging violations of extradition treaty between the United States and the
Dominican Republic were an attack on the validity of petitioner’s federal conviction
and sentence and did not fall within savings clause jurisdiction).
Therefore, having carefully reviewed and considered de novo all the materials
in the court file, including the magistrate judge’s Report and Recommendation and
the Petitioner’s Objections thereto, the court is of the opinion that the magistrate
judge=s findings are due to be and are hereby ADOPTED and his recommendation is
ACCEPTED. Petitioner=s Objections are OVERRULED. As a result, the petition

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for writ of habeas corpus is due to DISMISSED WITHOUT PREJUDICE, for
lack of jurisdiction. A separate Final Order will be entered.
DONE the 18th day of December, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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