ROSALES v. HOLLINGSWORTH
Filing
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OPINION. Signed by Judge Noel L. Hillman on 3/27/2014. (tf, n.m.) [Transferred from njd on 3/27/2014.]
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NICOLAS P. ROSALES,
Petitioner,
v.
JORDAN R. HOLLINGSWORTH,
Warden,
Respondent.
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Civil Action No. 12-7672(NLH)
OPINION
APPEARANCES:
Nicolas P. Rosales
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner pro se
HILLMAN, District Judge
Petitioner Nicolas P. Rosales, a prisoner currently
confined at the Federal Correctional Institution at Fort Dix,
New Jersey, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 1 challenging his imprisonment
1
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district
pursuant to a federal sentence imposed in the United States
District Court for the Middle District of Florida. 2
Rosales, Crim. No. 09-00289 (M.D. Fla.) 3
See U.S. v.
The sole respondent is
Warden Jordan R. Hollingsworth.
For the following reasons, this Court finds that it lacks
jurisdiction over this Petition and will transfer it to the U.S.
District Court for the Middle District of Florida.
I.
BACKGROUND
Petitioner asserts that on or about June 10, 2009, he was
seized by the U.S. Coast Guard “in foreign waters,” 46 miles
from the coast of Nicaragua, after which he was prosecuted under
the Maritime Drug Law Enforcement Act (“MDLEA”). 4
(Doc. No. 1,
Memorandum, at 3.)
courts and any circuit judge within their respective
jurisdictions. ...
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in
violation of the Constitution or laws or treaties of
the United States ... .
2
This matter previously was administratively terminated for
failure to prepay the filing fee or to submit an application for
leave to proceed in forma pauperis. Petitioner has since paid
the filing fee. Accordingly, this matter will be re-opened.
3
This Court will take judicial notice of the Docket in
Petitioner’s criminal proceeding. See Arroyo v. Hollingsworth,
Civil No. 12-7889, 2013 WL 5816917, *1 n.2 (D.N.J. Oct. 29,
2013).
4
The Maritime Drug Law Enforcement Act was previously codified
at 46 U.S.C. App. § 1901 et seq. It is now codified at 46
2
Pursuant to his guilty plea, Petitioner was convicted in
the U.S. District Court for the Middle District of Florida of
one count of conspiracy to possess with intent to distribute
five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation
of 46 U.S.C. §§ 70503(a), 70506(a) and (b), and 21 U.S.C.
§ 960(b)(1)(B)(ii), and one count of possession with intent to
distribute five kilograms or more of cocaine while on board a
vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. §§ 70503(a), 70506(a) and (b), and 21
U.S.C. § 960(b)(1)(B)(ii).
Petitioner was sentenced to a 135-
month term of imprisonment, to be followed by a five-year term
of supervised release.
See U.S. v. Rosales, Crim. No. 09-00289
(M.D. Fla) (Doc. No. 63, Judgment).
The record of proceedings
in Petitioner’s criminal case does not reflect that he ever
appealed his conviction or filed a motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence.
Here, Petitioner has filed a Petition for writ of habeas
corpus under 28 U.S.C. § 2241 asserting two grounds for relief:
(1) that, based on new caselaw out of the Court of Appeals for
the Eleventh Circuit, the United States had no jurisdiction to
U.S.C. §§ 70501-70507. See Act of Oct. 6, 2006, Pub.L. No. 109304, § 10(2), 120 Stat. 1485, 1658-89.
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arrest him, and (2) that he is illegally incarcerated because
the trial court had no jurisdiction to impose sentence.
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
United States Code Title 28, Section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).
See also Higgs v. Attorney General of the U.S., 655
F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally
construe a pro se litigant’s pleadings is well-established.”
(citing Estelle and Haines)).
A pro se habeas petition and any
supporting submissions must be construed liberally and with a
measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d
Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d
Cir. 1969), cert. denied, 399 U.S. 912 (1970).
Nevertheless, a
federal district court can dismiss a habeas corpus petition if
it appears from the face of the petition that the petitioner is
not entitled to relief.
See Lonchar v. Thomas, 517 U.S. 314,
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320 (1996); Denny v. Schultz, 708 F.3d 140, 148 n.3 (3d Cir.
2013).
See also 28 U.S.C. §§ 2243, 2255.
III.
ANALYSIS
“It is axiomatic that federal courts are courts of limited
jurisdiction, and as such are under a continuing duty to satisfy
themselves of their jurisdiction before proceeding to the merits
of any case.”
Packard v. Provident Nat. Bank, 994 F.2d 1039,
1049 (3d Cir.) (citations omitted), cert. denied, 510 U.S. 946
(1993).
See also Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013);
Bender v. Williamsport Area School District, 475 U.S. 534, 541
(1986).
Here, for the reasons set forth below, this Court finds
that it lacks jurisdiction to entertain this § 2241 Petition.
As noted by the Court of Appeals for the Third Circuit in
In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255
has been the “usual avenue” for federal prisoners seeking to
challenge the legality of their confinement.
See also Okereke
v. United States, 307 F.3d 117, 120 (3d Cir. 2002); United
States v. McKeithan, 437 F. App’x 148, 150 (3d Cir. 2011);
United States v. Walker, 980 F.Supp. 144, 145-46 (E.D. Pa. 1997)
(challenges to a sentence as imposed should be brought under
§ 2255, while challenges to the manner in which a sentence is
executed should be brought under § 2241).
Motions under § 2255
must be brought before the court which imposed the sentence.
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See 28 U.S.C. § 2255.
In addition, a one-year limitations
period applies to § 2255 motions.
See 28 U.S.C. § 2255(f).
Section 2255, however, contains a safety valve permitting
resort to § 2241, a statute without timeliness or successive
petition limitations, and which permits filing in the court of
confinement, where “it appears that the remedy by motion is
inadequate or ineffective to test the legality of [the
prisoner’s] detention.”
See 28 U.S.C. § 2255(e).
In
Dorsainvil, the Third Circuit held that the remedy provided by
§ 2255 is “inadequate or ineffective” where a prisoner who
previously had filed a § 2255 motion on other grounds “had no
earlier opportunity to challenge his conviction for a crime that
an intervening change in substantive law may negate.”
119 F.3d
at 251.
The court emphasized, however, that its holding was not
intended to suggest that § 2255 would be considered “inadequate
or ineffective” merely because a petitioner is unable to meet
the stringent gatekeeping requirements of § 2255.
Id.
To the
contrary, the court was persuaded that § 2255 was “inadequate or
ineffective” in the unusual circumstances presented in
Dorsainvil only because it would have been a complete
miscarriage of justice to confine a prisoner for conduct that,
based upon an intervening interpretation of the statute of
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conviction by the United States Supreme Court, may not have been
criminal conduct at all.
Id. at 251-52.
In Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir.
2002), the Court of Appeals emphasized the narrowness of the
“inadequate or ineffective” exception.
A § 2255 motion is
“inadequate or ineffective,” authorizing resort to § 2241, “only
where the petitioner demonstrates that some limitation of scope
or procedure would prevent a § 2255 proceeding from affording
him a full hearing and adjudication of his wrongful detention
claim.”
Cradle, 290 F.3d at 538.
“It is the inefficacy of the
remedy, not the personal inability to use it, that is
determinative.”
Id.
“Section 2255 is not ‘inadequate or
ineffective’ merely because the sentencing court does not grant
relief, the one-year statute of limitations has expired, or the
petitioner is unable to meet the stringent gatekeeping
requirements of the amended § 2255.
The provision exists to
ensure that petitioners have a fair opportunity to seek
collateral relief, not to enable them to evade procedural
requirements.”
Id. at 539.
Thus, under Dorsainvil and its progeny, this Court would
have jurisdiction over this Petition if, and only if, Petitioner
demonstrates: (1) his “actual innocence,” (2) as a result of a
retroactive change in substantive law that negates the
criminality of his conduct, (3) for which he had no other
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opportunity to seek judicial review.
See Dorsainvil, 119 F.3d
at 251-52; Cradle, 290 F.3d at 539; Okereke, 307 F.3d at 120;
Trenkler v. Pugh, 83 F.App’x 468, 470 (3d Cir. 2003).
Here, Petitioner argues that, under the recent Eleventh
Circuit case United States v. Bellaizac-Hurtado, 700 F.3d 1245
(11th Cir. 2012), the conduct for which he was convicted is no
longer considered to be a crime and he cannot now raise this
issue in a § 2255 motion.
In Bellaizac-Hurtado, a case decided
on direct appeal of a criminal conviction, the Eleventh Circuit
addressed “the scope of congressional power to proscribe conduct
abroad,” or, more specifically, “whether the Maritime Drug Law
Enforcement Act, 46 U.S.C. §§ 70503(a), 70506, exceeds the power
of Congress to ‘define and punish ... Offences against the Law
of Nations,’ U.S. Const. Art. I, § 8, cl. 10, as applied to the
drug trafficking activities [of the defendants].”
1247.
700 F.3d at
There, during a routine patrol of sovereign Panamanian
waters, the United States Coast Guard observed a wooden fishing
vessel operating without lights and without a flag.
The U.S.
Coast Guard informed Panamanian authorities, who pursued the
vessel until its occupants abandoned it and fled on land.
Panamanian authorities searched the vessel, determined that it
contained 760 kilograms of cocaine, and later apprehended the
former occupants of the vessel on Panamanian land.
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After an
exchange of diplomatic notes, the government of Panama consented
to the prosecution of the four suspects in the United States.
The Eleventh Circuit held that the Maritime Drug Law
Enforcement Act, as applied to the defendants there, was not a
constitutional exercise of Congress’s power “[t]o define and
punish ... Offenses against the Law of Nations” under Article I,
Section 8, clause 10 of the U.S. Constitution.
That is, the
Eleventh Circuit found that drug trafficking is not a crime
under customary international law and, thus, is not subject to
prosecution in the U.S. under the Offenses Clause for conduct
that occurs in the territorial waters of another nation.
The
Eleventh Circuit explicitly distinguished and reaffirmed,
however, its numerous precedents upholding the authority of
Congress to prosecute drug trafficking activities conducted in
international waters, under the Piracies and Felonies Clause,
which empowers Congress “[t]o define and punish Piracies and
Felonies committed on the high Seas,” see Article I, Section 8,
clause 10 of U.S. Constitution.
See Bellaizac-Hurtado, 700 F.3d
at 1257 (collecting cases).
Petitioner’s argument requires this Court to consider, in
the first instance, whether the conduct for which he was
convicted occurred in the territorial waters of another nation
or in international waters, as this single fact determines the
applicability of Bellaizac-Hurtado to Petitioner’s conviction.
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Petitioner describes his arrest as occurring at sea, 46 miles
from the coast of Nicaragua.
(Doc. No. 1, Memorandum, at 3.)
The United States recognizes a territorial sea of 12 nautical
miles.
See Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 441 n.8 (1989) (“On December 28, 1988, the
President announced that the United States would henceforth
recognize a territorial sea of 12 nautical miles”); Presidential
Proclamation No. 5928, 1988 WL 1099307 (Dec. 27, 1988).
See
also United States v. McPhee, 336 F.3d 1269, 1273 (11th Cir.
2003) (“The United States generally recognizes the territorial
seas of foreign nations up to twelve nautical miles adjacent to
recognized foreign coasts.”) (citations omitted).
The United
Nations Convention on the Law of the Sea also recognizes a
territorial sea of 12 nautical miles.
See United Nations
Convention on the Law of the Sea, 1833 U.N.T.S. Art. 3 (entered
into force on November 16, 1994) (“Every State has the right to
establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines determined
in accordance with this Convention.”).
Thus, Petitioner has
failed to allege facts suggesting that his conduct is rendered
non-criminal by the Eleventh Circuit’s Bellaizac-Hurtado
decision.
That is, he has failed to allege facts suggesting
that he was arrested in the sovereign waters of Nicaragua or any
other nation; to the contrary, he has alleged facts
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demonstrating that he was seized in international waters.
Accordingly, Petitioner has failed to bring his claims within
the Dorsainvil exception and this Court lacks jurisdiction over
the § 2241 Petition.
However, rather than dismiss the petition outright, because
Petitioner has never sought to collaterally attack his judgment
pursuant to § 2255, and in the interest of justice, the Court
will transfer this matter to the United States District Court
for the Middle District of Florida, to be considered by that
Court.
See 28 U.S.C. § 1631 (whenever a civil action is filed
in a court that lacks jurisdiction, “the court shall, if it is
in the interests of justice, transfer such action ... to any
other such court in which the action ... could have been brought
at the time it was filed”).
See also Arroyo v. Hollingsworth,
Civil No. 12-7889, 2013 WL 5816917, *3 (D.N.J. Oct. 29, 2013).
IV.
CONCLUSION
For the reasons set forth above, this Court lacks
jurisdiction over the petition and will order its transfer to
the District Court for the Middle District of Florida.
An appropriate order follows.
At Camden, New Jersey
s/Noel L. Hillman
Noel L. Hillman
United States District Judge
Dated: March 27, 2014
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