Lee v. Cozza-Rhodes

Filing 6

ORDER Directing Applicant to File Final Amended Application, by Magistrate Judge Boyd N. Boland on 5/08/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00973-BNB
BRANDON CHE LEE,
Applicant, named as Petitioner,
v.
COZZA-RHODES,
Respondent.

ORDER DIRECTING APPLICANT TO FILE FINAL AMENDED APPLICATION

Applicant, Brandon Che Lee, is a prisoner in the custody of the Federal Bureau
of Prisons (BOP) who currently is incarcerated at the Federal Correctional Institution in
Florence, Colorado (FCI Florence). He initiated the instant action on April 15, 2013, by
filing pro se a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (ECF No.
1). On April 16, 2013, the Court ordered Mr. Lee to cure certain deficiencies.
Specifically, Mr. Lee was ordered either to pay the $5.00 filing fee for a habeas
corpus action or to submit a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action together with a certificate
showing the current balance in his prison account. He also was ordered to submit his §
2241 application on the proper, Court-approved form and only to name his current
warden, superintendent, jailer, or other custodian as Respondent. On April 25, 2013,
Mr. Lee submitted an amended Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2241 (ECF No. 4) on the incorrect form, and on April 30, 2013, he paid the $5.00 filing

fee.
The Court must construe liberally Mr. Lee’s amended habeas corpus petition
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For
the reasons stated below, Mr. Lee will be ordered to file on the proper, Court-approved
form a final amended habeas corpus application that only asserts § 2241 claims.
According to the Public Access to Court Electronic Records (PACER) website,
www.pacer.gov, on October 20, 2009, Mr. Lee was convicted by a jury in United States
District Court for the Central District of California (Central District of California) Criminal
Action No. 07-cr-00207-AG-1 (ECF No. 173 in No. 07-cr-00207-AG-1) on charges of
mail fraud in violation of 18 U.S.C. § 1341, producing false identification documents in
violation of 18 U.S.C. § 1028(a)(1), possessing five or more false identification
documents in violation of 18 U.S.C. § 1028(a)(3), and possessing document-making
implements in violation of 18 U.S.C. § 1028(a)(5). See ECF Nos. 233 and 311 at 3 in
No. 07-cr-00207-AG-1. “[T]he court is permitted to take judicial notice of its own files
and records, as well as facts which are a matter of public record." Van Woudenberg ex
rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir.2000), abrogated on other grounds by
McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001); see also Duhart v. Carlson,
469 F.2d 471 (10th Cir. 1972).
On June 2, 2010, the Central District of California sentenced Mr. Lee to 240
years of imprisonment and five years of supervised release, and ordered him to pay
restitution of approximately $4.9 million. ECF Nos. 232 and 311 in No. 07-cr-00207-AG2

1. The judgment was entered on the docket on June 2, 2010. ECF No. 233 in No. 07cr-00207-AG-1. He appealed his conviction and sentence directly to the United States
Court of Appeals for the Ninth Circuit, which affirmed on January 27, 2012. ECF No.
311 in No. 07-cr-00207-AG-1.
Mr. Lee asserts four claims. They are:
1.
His detention in the BOP in unlawful because the prosecuting
attorney never went to the grand jury with his indictment.
2.
His incarceration in the BOP is pursuant to a false judgment and
probation/commitment order and false pre-sentence report.
3.
He is illegally detained, his requests for release have been denied,
and instead he has been transferred to FCI Florence.
4.
He failed to receive a timely response from the Central Office to his BP-11
administrative remedy.
As relief he asks for his immediate release from custody.
The Court has reviewed the amended § 2241 petition and finds that it is deficient
because it does not assert only § 2241 claims. Mr. Lee’s first two claims and part of his
third appear to attack the legality of his conviction and sentence. However, he may not
attack the legality of his sentence in this § 2241 proceeding. See Bradshaw v. Story, 86
F.3d 164, 166 (10th Cir. 1996) (“A petition under 28 U.S.C. § 2241 attacks the execution
of a sentence rather than its validity and must be filed in the district where the prisoner
is confined . . . A 28 U.S.C. § 2255 petition attacks the legality of detention, . . . and
must be filed in the district that imposed the sentence.”). To the extent Mr. Lee seeks to
challenge attack the legality of his conviction and sentence, he must seek relief in the
sentencing court pursuant to § 2255. Id.; see also Johnson v. Taylor, 347 F.2d 365,
366 (10th Cir. 1965) (per curiam). (“The exclusive remedy for testing the validity of a
3

judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28
U.S.C. § 2255.”).
Mr. Lee’s challenge in his third claim to his transfer to FCI Florence appears to
assert a conditions-of-confinement claim inappropriately raised in a habeas corpus
action. Mr. Lee properly may assert the conditions-of-confinement claim in a separate
action initiated pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Mr. Lee’s fourth claim also in inappropriate raised in a habeas corpus action because it
fails to attack the execution of his sentence.
The final amended application Mr. Lee will be directed to file must comply with
the pleading requirements for a habeas corpus application. Pleading in § 2254 federal
habeas corpus cases is governed by Rule 2 of the Rules Governing Section 2254
Cases in the United States District Courts (Section 2254 Rules), which requires more
specific pleading than the rules governing ordinary civil cases. See Blackledge v.
Allison, 431 U.S. 63, 75 n.7 (1977) (Notice pleading is not sufficient; the petition is
expected to state facts that point to “a real possibility of constitutional error.”); Aubut v.
State of Maine, 431 F.2d 688, 689 (1st Cir. 1970) (same); Mayle v. Felix, 545 U.S. 644,
655 (2005) (Section 2254 Rule 2(c), which is more demanding than Rule 8(a) of the
Federal Rules of Civil Procedure, requires the petition to “specify all the grounds for
relief available to the petitioner” and “state the facts supporting each ground.”). Rule
1(b) of the Section 2254 Rules apply the Section 2254 Rules to § 2241 applications as
well.
The Federal Rules of Civil Procedure also apply to applications for habeas
corpus relief. See Fed. R. Civ. P. 81(a)(4); Browder v. Director, Dep’t of Corrections,
4

434 U.S. 257, 269 (1978); Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th Cir. 1987).
Pursuant to Fed. R. Civ. P. 8(a), a pleading "shall contain (1) a short and plain
statement of the basis for the court’s jurisdiction, . . . (2) a short and plain statement of
the claim showing that the pleader is entitled to relief, and (3) a demand for the relief
sought." Fed. R. Civ. P. 8(d)(1) provides that "[e]ach allegation must be simple,
concise, and direct." Taken together, Rules 8(a) and (d)(1) underscore the emphasis
placed on clarity and brevity by the federal pleading rules. Prolix, vague, or
unintelligible pleadings violate the requirements of Rule 8.
For the reasons stated above, Mr. Lee will be directed to file a final amended
application on the proper, Court-approved form asserting claims pursuant to § 2241 that
comply with the pleading requirements of Rule 2(c) of the Section 2254 Rules and Fed.
R. Civ. P. 8. Administrative remedies for Mr. Lee’s claims also must have been
exhausted. “The exhaustion of available administrative remedies is a prerequisite for §
2241 habeas relief, although we recognize that the statute itself does not expressly
contain such a requirement.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010).
Failure to file such a final amended application within the time allowed will result in the
dismissal of the instant action.
Accordingly, it is
ORDERED that Applicant, Brandon Che Lee, is directed within thirty (30) days
from the date of this order to file a final amended Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 that only asserts exhausted claims attacking the
execution of his sentence. It is

5

FURTHER ORDERED that Mr. Lee shall obtain the proper, Court-approved form,
along with the applicable instructions, at www.cod.uscourts.gov, and use that form in
submitting the final amended application. It is
FURTHER ORDERED that, if Mr. Lee fails to comply with this order within the
time allowed, the amended petition will be denied, and the action dismissed without
further notice.
DATED May 8, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

6