Andreozzi v. Tracy

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION: The Court will accept Judge Bade's 16 Report and Recommendation, but on a different basis. The Petition for writ of habeas corpus (Doc. 1 ) is denied without prejudice. The Clerk of the Court is d irected to terminate this action. A certificate of appealability is denied because the Court concludes that the Petition plainly cannot be pursued as a habeas action and the Court should not recharacterize it as a civil rights claim. The Court does not believe that reasonable jurists would disagree, particularly in light of the Ninth Circuit's recent decision in Nettles, 2016 WL 4072465. Signed by Judge David G Campbell on 10/3/16. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Armand Andreozzi,
Petitioner,

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ORDER

v.

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No. CV-16-00562-PHX-DGC

Kathryn Tracy,

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Respondent.

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On February 29, 2016, Petitioner Armand Andreozzi filed a pro se petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2241. Doc. 1. The Court referred the petition

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to Magistrate Judge Bridget S. Bade. Doc. 4 at 3. On July 8, 2016, Judge Bade issued a

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report and a recommendation that the Court deny the petition (“R&R”).

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Petitioner filed pro se objections to the R&R (Doc. 19), and Respondent Kathryn Tracy

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filed a response (Doc. 22). For the reasons set forth below, the Court will accept Judge

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Bade’s recommendation that the Petition be denied, but on a different basis.

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I.

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Doc. 16.

Background.
Judge Bade provided the following summary of Petitioner’s convictions and

habeas corpus petition:

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A.

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On June 12, 1998, a panel of officers and enlisted members sitting as a
general court-martial at Fort Carson, Colorado convicted Petitioner of rape,
forcible sodomy, assault, burglary, kidnapping, and solicitation of another
to assist in escape from pretrial confinement, in violation of several
provisions of the Uniform Code of Military Justice (UCMJ). Petitioner was
sentenced to reduction in rank, forfeiture of all pay and allowances,

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June 12, 1998 Court-Martial

confinement for twenty-seven years, and a dishonorable discharge. The
convening authority approved the sentence except for the forfeiture of pay
and allowances, which was waived pursuant to Article 58b of the UCMJ
and paid to Petitioner’s spouse.

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Petitioner, through counsel, appealed his conviction to the United States
Army Court of Criminal Appeals (ACCA). November 4, 2004, the ACCA
affirmed the “findings of guilty and the sentence . . . .” Petitioner then filed
a “petition for grant of review” of the ACCA’s decision in the United States
Court of Appeals for the Armed Forces (CAAF). On October 4, 2005, the
CAAF denied Petitioner’s request for review.

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B.

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On November 13, 1998, Petitioner pleaded guilty to charges in a second
court-martial and was found guilty of desertion, escaping confinement,
larceny, wrongful appropriation of military property, assault, kidnapping,
and unlawfully carrying a concealed weapon. On November 13, 1998,
Petitioner was sentenced to confinement for fifteen years and a
dishonorable discharge. On April 14, 1999, the convening authority
approved the sentence. Petitioner, through counsel, appealed to the ACCA.
On October 19, 2001, the ACCA affirmed the November 13, 1998 findings
of guilty and the sentence. Petitioner filed a “petition for grant of review”
of the ACCA’s decision in the CAAF. On May 7, 2002, the CAAF denied
Petitioner’s request for review.

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C.

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Following Petitioner’s appeals, on December 6, 2005, he was dishonorably
discharged from the U.S. Army. In accordance with a Memorandum of
Agreement (MOA) between the U.S. Amy and the BOP, Petitioner was
transferred to the BOP on January 17, 2006.

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D.

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November 13, 1998 Court-Martial

Dishonorable Discharge and Transfer to BOP

Habeas Corpus Proceeding in the ACCA

In January 2016, Petitioner filed a petition for writ of habeas corpus with
the ACCA challenging his detention within BOP. Petitioner asserted that,
although he was “housed” by BOP, he was in the custody of the armed
forces serving a sentence imposed pursuant to a court-martial. He argued
that because he remained in the legal custody of the armed forces, he was
entitled to habeas corpus relief because he was being confined in immediate
association with foreign nationals in violation of 10 U.S.C. § 812. On
February 2, 2016, the ACCA denied relief.
Petitioner requested
reconsideration en banc, which was denied on February 26, 2016.

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Doc. 16 at 2-4 (footnotes and citations omitted).

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II.

The Petition and the R&R.

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Petitioner again argues that he has been confined with foreign nationals in

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violation of 10 U.S.C. § 812, which prohibits the confinement of members of the armed

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services in close association with enemy prisoners or other foreign nationals. Doc. 1 at 1.

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As a remedy, he seeks five days’ credit to his sentence for every day his custody has

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violated § 812. Id. at 9. He also argues that the Army Court of Criminal Appeals

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(“ACCA”) arbitrarily denied his petition for habeas corpus relief. Id. at 5.

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Judge Bade found that the “full and fair consideration” standard applies to the

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Court’s collateral review of the ACCA’s denial of Petitioner’s habeas corpus petition. Id.

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She concluded that federal courts should defer to military courts when reviewing the

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merits of court-martial proceedings and any ancillary matters that have been considered

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and decided by military courts. Id. at 6. She also determined that the ACCA’s denial of

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Petitioner’s habeas petition constituted full and fair consideration because Petitioner fully

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briefed and argued his claim before the ACCA. Judge Bade found that if an issue is fully

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briefed before a military court, even a summary denial by that court constitutes full and

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fair consideration. Id. at 5.

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Judge Bade also found that Petitioner has provided no factual support for the

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alleged violation of § 812. As a result, she found that Petitioner’s claim should be denied

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even if considered de novo. Id. at 9. Further, Judge Bade denied Petitioner’s motion to

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strike documents relating to his court-marital proceedings, finding that they provided

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important context for this case. Id. at 2.

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III.

Petitioner’s Objections.

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Petitioner first objects to the denial of his Rule 12(f) motion to strike “all matters

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pertaining to Pet[itioners court martial proceedings], appeal, discharge, and

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confinement”. Doc. 14 at 2. According to Petitioner, those matters are “outside the

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scope of the issues raised in this action.” Doc. 19 at 1. Next, Petitioner argues that the

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full and fair consideration standard does not apply to collateral review of his claim

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because he does not challenge the merits of his court-martial proceedings or a matter

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ancillary to those proceedings. Id. at 2-5. He asserts, in the alternative, that even if the

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standard applies, it was not met in his case. Id. at 5-7. Finally, Petitioner objects to

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Judge Bade’s finding on the merits of his claim, again asserting that he is being confined

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with foreign nationals in violation of § 812. The Court will review Petitioner’s specific

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objections de novo. See 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003).

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IV.

Analysis.

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A.

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Under Rule 12(f), the court may “strike from a pleading an insufficient defense or

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any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).

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Motions to strike are generally disfavored and “should not be granted unless it is clear

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that the matter to be stricken could have no possible bearing on the subject matter of the

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litigation.” Johnson v. Cal. Medical Facility Health Servs., 2015 WL 4508734, at *6

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Motion to Strike.

(E.D. Cal. July 24, 2015).

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Petitioner argues that Respondent’s pleadings, which contain records of

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Petitioner’s charges, sentencing, appeal, discharge, and confinement, are “immaterial,

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impertinent, and are an insufficient defense to the issues raised in the petition and fall

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squarely within the parameters of Rule 12(f) to be stricken.” Doc. 19 at 1. Judge Bade

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found that the records provide context for Petitioner’s claim. Doc. 16 at 2. The Court

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agrees. Petitioner’s claims concern his status within the military, the adequacy of the

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consideration his claims received in military court, and the nature of his current claim

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under § 812. The records are relevant to Petitioner’s claims.

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B.

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Petitioner filed a petition for habeas relief under 28 U.S.C. § 2241.

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government did not assert that this was an improper form of relief, and Judge Bade dealt

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with his claim as a habeas petition. The Court concludes, however, that Petitioner seeks

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relief that cannot be obtained through a habeas petition.

Habeas Claim.
The

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There are “well-recognized boundaries between habeas corpus and civil rights

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claims.” Glaus v. Anderson, 408 F.3d 382, 385 (7th Cir. 2005). As the Supreme Court

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has made clear, habeas claims are proper only when an individual is challenging the

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validity or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475 (1973), 498-

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99. The Ninth Circuit has echoed this distinction:

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Suits challenging the validity of the prisoner’s continued incarceration lie
within the heart of habeas corpus, whereas a § 1983 action is a proper
remedy for a . . . prisoner who is making a constitutional challenge to the
conditions of his prison life, but not to the fact or length of his custody.
Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (internal citations omitted). In a
recent en banc decision, the Ninth Circuit confirmed that cases challenging conditions of
confinement, rather than the fact or duration of confinement, cannot be brought as habeas
claims. Nettles v. Grounds, --- F.3d ---, No. 12-16935, 2016 WL 4072465, at *9 (9th Cir.
July 26, 2016) (“Because success on Nettles’s claims would not necessarily lead to his
immediate or earlier release from confinement, Nettles’s claim does not fall within ‘the
core of habeas corpus,’ and he must instead bring his claim under § 1983.”) (citation
omitted).
In Glaus, a federal prisoner filed a habeas petition alleging a violation of his
Eighth Amendment rights based on prison officials’ indifference to his need for medical
treatment, and requested transfer to a prison medical facility or release from custody to
obtain treatment. 408 F.3d at 384. The Seventh Circuit upheld the district court’s
dismissal of the petition, noting that it “was really a classic ‘conditions of confinement’
claim” which should be brought as a civil rights action. Id. at 386; see also Wiley v. Holt,
42 F. App’x 399, 400 (10th Cir. 2002) (“A habeas corpus proceeding attacks the fact or
duration of a prisoner’s confinement and seeks the remedy of immediate release or a
shortened period of confinement. In contrast, a civil rights action attacks the conditions
of the prisoner’s confinement.”) (internal citation omitted).
Here, Petitioner does not challenge the validity or duration of his confinement. He
challenges a condition of his confinement – being housed with foreign nationals.
Doc. 19. The fact that petitioner asks for a remedy that would shorten his sentence does
not change the underlying nature of his claim. Doc. 1. The petitioner in Glaus also
sought early release, but the court held that habeas corpus was not the proper avenue for
his claim. 408 F.3d at 384. Glaus noted that release was not an available remedy for an
Eighth Amendment deliberate indifference claim. Similarly, Petitioner has presented no
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authority to suggest that a reduced sentence is an appropriate remedy for violation of

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§ 812.

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A court may recharacterize an improperly labeled habeas petition as a civil rights

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claim, and deal with it as recharacterized. See Nelson v. Campbell, 541 U.S. 637, 647

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(2004); Glaus, 408 F.3d at 388; Weaver v. Sanders, No. CV 13-3269-FMO JPR, 2013

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WL 2147806, at *2 (C.D. Cal. May 16, 2013). But the court in Glaus recognized several

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factors that recommend caution before recharacterizing a habeas petition. 408 F.3d at

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388. These include discrepancies in the identification of the defendant, the nature of the

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relief sought, relevant exhaustion requirements for filing, and the amount of the filing fee.

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Id. Here, as in Glaus, the warden has been named as the respondent and may not be the

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correct or exclusive defendant in a civil rights action. It does not appear that the decision

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to house Petitioner in the Bureau of Prisons was the Warden’s. Petitioner may need to

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seek relief against the Department of the Army or the Bureau of Prisons. See Moore v.

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Pemberton, 110 F.3d 22, 23-24 (7th Cir. 1997) (“The right respondent in a § 2254 action

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is the warden of the prison; the right defendants in a § 1983 suit are the persons whose

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wrongful acts harmed the plaintiff (and the warden is rarely a proper defendant, because

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he is not vicariously liable for subordinates’ acts).”).

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In addition, because Petitioner is complaining about where he has been housed by

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federal officials, his civil rights claim may need to be brought under Bivens v. Six

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Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), if it can

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be maintained under the Bivens doctrine.

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however, “federal prisoners suing under Bivens may sue relevant officials in their

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individual capacity only. In this instance, Glaus’s suit against the warden appears to be

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an action against the warden in his official capacity.” 408 F.3d at 389. The same is true

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of Petitioner’s claim.

As the Seventh Circuit noted in Glaus,

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Considering the nature of Petitioner’s allegations, the Court declines to

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recharacterize Petitioner’s complaint as a civil rights suit. The Court instead will deny

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the petition without prejudice so Petitioner can consider pursuing his claim as a civil

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rights action. This comports with the recognition in Glaus that recharacterization should

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occur only “in a narrow set of circumstances.” Id. at 388; see also Nettles, 2016 WL

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4072465, at *9-10 (discussing Glaus favorably).1

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The Court expresses no view on whether Petitioner can plead or prevail on a civil
rights claim.

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IT IS ORDERED

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1.

The Petition for writ of habeas corpus (Doc. 1) is denied without prejudice.

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2.

The Clerk of the Court is directed to terminate this action.

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3.

A certificate of appealability is denied because the Court concludes that the

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Petition plainly cannot be pursued as a habeas action and the Court should

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not recharacterize it as a civil rights claim. The Court does not believe that

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reasonable jurists would disagree, particularly in light of the Ninth Circuit’s

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recent decision in Nettles, 2016 WL 4072465.

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Dated this 3rd day of October, 2016.

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Judge Bade concluded that Petitioner’s claim fails on the merits because he has
not shown that he has been confined in “immediate association” with foreign nationals.
Doc. 16 at 8-9. The Court agrees with this analysis under § 812, and would affirm on the
merits were it not for the fact that Judge Bade’s decision is based on petitioner’s failure to
produce evidence in this case. Because the Court has concluded that this case should not
have proceeded under the habeas statute, and should be dismissed without prejudice to
allow a possible civil rights action, the Court also concludes that it should not dismiss on
the merits due to a failure to produce evidence in this proceeding. If Petitioner can make
out a viable civil rights claim, he may be able in that case to produce the evidence lacking
here. Nor will the Court attempt to resolve the government’s argument that § 812 does
not apply to Petitioner because he has been dishonorably discharged from the military
and thus is no longer a “member of the armed forces.” Doc. 22 at 4. The Court would
address this issue if it recharacterized this action and retained jurisdiction, but concludes
that it should not engage in further merits analysis given its lack of jurisdiction over this
action as a habeas petition.
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