GUERRERO v. HOLLINGSWORTH
Filing
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OPINION. Signed by Chief Judge Jerome B. Simandle on 4/11/2013. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BLAS LASTRA GUERRERO,
Petitioner,
v.
JORDAN R. HOLLINGSWORTH,
Respondent.
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Civil Action No. 12-7928 (JBS)
OPINION
APPEARANCES:
Blas Lastra Guerrero, #48116-018
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner pro se
Paul J. Fishman
United States Attorney
By: J. Andrew Ruymann
Assistant U.S. Attorney
United States Attorney's Office
402 East State Street
Room 502
Trenton, NJ 08608
SIMANDLE, Chief Judge
Petitioner Blas Lastra Guerrero, 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
The sole respondent is Warden
Jordan R. Hollingsworth.
Because it appears from a review of the Petition that this
Court lacks jurisdiction, the Petition will be dismissed.
See 28
U.S.C. § 2243.
I.
BACKGROUND
Pursuant to a guilty plea, Petitioner was convicted in the
U.S. District Court for the Middle District of Florida of
conspiracy to possess with intent to distribute five kilograms or
more of cocaine while aboard a vessel subject to the jurisdiction
of the United States, in violation of 21 U.S.C.
§ 960(b)(1)(B)(ii) and 46 U.S.C. App. §§ 1903(a), 1903(g), and
1903(j), and possession with intent to distribute five kilograms
or more of cocaine while aboard a vessel subject to the
jurisdiction of the United States, in violation of 21 U.S.C
§ 960(b)(1)(B)(ii) and 46 U.S.C. App. §§ 1903(a) and 1903(g),
provisions of the Maritime Drug Law Enforcement Act (“MDLEA”).2
1
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district 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
At the time of Petitioner’s conviction, the MDLEA was
codified at 46 U.S.C. App. §§ 1901-1904. Subsequently, Congress
2
United States v. Guerrero, Criminal No. 05-0381 (M.D. Fla.).
On
March 20, 2006, Petitioner was sentenced to an aggregate term of
imprisonment of 135 months, to be followed by a 36-month term of
supervised release.
17, 2015.
Petitioner’s projected release date is June
(Answer, Ruymann Decl., Ex. 2 [Public Information
Inmate Data]).
On direct appeal, Petitioner challenged only his sentence,
not his conviction.
The Court of Appeals for the Eleventh
Circuit affirmed the sentence.
U.S. v. Guerrero, 2006 WL
3431760, 208 Fed.Appx. 727 (11th Cir. Nov. 29, 2006).
The docket
of the criminal action in the Middle District of Florida does not
reflect that Petitioner ever filed a motion to vacate, correct,
or set aside sentence under 28 U.S.C. § 2255.
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 U.S. Circuit Court of
Appeals for the Eleventh Circuit, the United States has no
jurisdiction in territorial waters of other nations, and (2) that
he is illegally incarcerated and that the trial court had no
jurisdiction to impose sentence.
Respondent has answered;
Petitioner has declined to file a reply.
Accordingly, this
matter is now ready for decision.
recodified the MDLEA, which is now found at 46 U.S.C. §§ 70501 70507. See Act of Oct. 6, 2006, Pub. L. No. 109-304, § 10(2),
120 Stat. 1485, 1658-89.
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II.
ANALYSIS
Federal courts are courts of limited jurisdiction and 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.),
cert. denied, 510 U.S. 946 (1993).
See also 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 Fed.Appx. 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.
§ 2255.
See 28 U.S.C.
A one-year limitations period applies to § 2255 motions.
See 28 U.S.C. § 2255(f).
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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 conviction by the United States
Supreme Court, may not have been criminal conduct at all.
251-52.
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Id. at
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
opportunity to seek judicial review.
See Dorsainvil, 119 F.3d at
251-52; Cradle, 290 F.3d at 539; Okereke v. United States, 307
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F.3d 117, 120 (3d Cir. 2002); Trenkler v. Pugh, 83 Fed.Appx. 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].”
700 F.3d at 1247.
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.
After an exchange of
diplomatic notes, the government of Panama consented to the
prosecution of the four suspects in the United States.
7
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.
700 F.3d at 1257.
Petitioner’s argument requires this Court to consider, in
the first instance, whether the conduct for which Petitioner 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.
At his plea hearing, Petitioner admitted, by agreeing with
the prosecutor, that on or about August 28, 2005, he and three
other crew members were aboard a Columbian-registered fishing
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vessel when that vessel was intercepted by the United States
Coast Guard in the Caribbean Sea, that he was to be paid for his
part in an unlawful agreement to transport five or more kilograms
of cocaine on the vessel for delivery to others, that the Coast
Guard seized approximately 350 kilograms of cocaine from the
fishing vessel, that the government of Columbia consented to the
enforcement of United States law in regards to the vessel and its
crew, and that Petitioner and the other crew members were
detained by the Coast Guard and brought to the United States
which they first entered in the Middle District of Florida.
(Answer, Ruymann Decl., Ex. 3 [Plea Transcript] at 26-27]).
The
plea transcript provides no other information as to the location
of the vessel in the Caribbean Sea at the time it was seized.
Nor does the transcript of Petitioner’s sentencing state where in
the Caribbean Sea the vessel was seized.
(Answer, Ruymann Decl.,
Ex. 4 [Sentencing Transcript]).
The Presentence Investigative Report (“PSR”) pertaining to
one of Petitioner’s fellow crew members, also convicted of
violating the MDLEA with respect to the same incident, stated
that the vessel was intercepted “approximately 150 nautical miles
south of Jamaica, in international waters, in the Caribbean Sea.”
Medina v. United States, 2006 WL 3784759 (M.D. Fla. Dec. 21,
2006); (Answer, Ruymann Decl., Ex. 5 [copy of Medina v. United
States]).
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In the Memorandum of Law accompanying his Petition,
Petitioner places the location of the vessel at the time of its
seizure at 100 miles from Jamaica.
(Mem. of Law [1] 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).
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, Sec. 2, Art. 3 (“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.”)
(entered into force on November 16, 1994) (ratified by Jamaica on
March 21, 1983),
http://www.un.org/Depts/los/convention_agreements/convention_over
view_convention.htm.
As Petitioner’s conduct occurred, by his
own admission, at least 100 miles from Jamaica, the conduct
occurred in international waters and is not rendered non-criminal
by the Eleventh Circuit’s Bellaizac-Hurtado decision.
Accordingly, Petitioner has failed to bring his claims within the
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Dorsainvil exception and this Court lacks jurisdiction over the
§ 2241 Petition.
In addition, because the Petition likely would be untimely3
if construed as a first § 2255 motion, and because of the
consequences that flow from the filing of a first § 2255 motion,
see generally Castro v. U.S., 540 U.S. 375 (2003), U.S. v.
Miller, 197 F.3d 644 (3d Cir. 1999), it would not be appropriate
to so construe the Petition and to transfer it to the court of
conviction.4
For all the foregoing reasons, the Petition will be
dismissed for lack of jurisdiction.
See Castillo v.
Hollingsworth, Civil No. 12-7831, 2013 WL 1288196 (D.N.J. March
26, 2013) (collecting cases).
3
Judgment was entered against Petitioner on March 20, 2006.
His appeal was decided on November 29, 2006. Accordingly,
Petitioner’s conviction became final 90 days later, on February
27, 2007, when the time to petition the U.S. Supreme Court for a
writ of certiorari expired. See Sup.Ct.R. 13. This Petition is
dated December 12, 2012, substantially more than one year later.
See 28 U.S.C. § 2255(f).
Although the limitations period is subject to equitable
tolling, a petitioner is entitled to such tolling only if he
shows that he has been pursuing his rights diligently and that
some extraordinary circumstance stood in his way and prevented
timely filing. See Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). Petitioner has not alleged any facts suggesting a basis
for equitable tolling.
4
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interest of
justice, transfer such action ... to any other such court in
which the action ... could have been brought at the time it was
filed.” 28 U.S.C. § 1631.
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III.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed for lack of jurisdiction.
An appropriate order
follows.
s/ Jerome B. Simandle
Jerome B. Simandle
Chief Judge
United States District Court
Dated:
April 11, 2013
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