Curtis v. Billingsey
Filing
9
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS IN PART AND TRANSFERRING TO THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK -- Petitioner's request for relief based on ineffective assistance of counsel is denied and he is also denied a certificate of appealability with respect to this claim as he fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see FED. R. APP. P. 22(b); Miller-El v. Cockrell, 53 7 U.S. 322, 336 (2003); Lucidore v. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this portion of the Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). As this Court lacks subject matter jurisdiction over Petitioner's § 2241 claims against the Bureau of Prisons, due to his current incarceration at FCI Otisville, the Clerk of Court is directed to TRANSFER this case to the U.S. District Court for the Southern District of New York, pursuant to 28 U.S.C. §§ 1406(a), 2241(a). Th is Court takes no position as to the merits of this claim. That provision of Rule 83.1 of the Local Rules of the Eastern District of New York which requires a seven-day delay is waived. The Clerk of the Court is directed to mail a copy of the Attached Written Memorandum and Order to pro se petitioner and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 4/1/2016.. Ordered by Judge Dora Lizette Irizarry on 3/31/2016. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------x
MELVIN CURTIS, pro se,
:
:
Petitioner,
:
:
-against:
:
WARDEN T. BILLINGSEY,
:
:
Respondent.
:
------------------------------------------------------x
DORA L. IRIZARRY, U.S. District Judge:
MEMORANDUM & ORDER
12-CV-4906 (DLI)
On September 28, 2012, Melvin Curtis (“Petitioner”), proceeding pro se 1, filed the
instant action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner’s habeas
action broadly can be construed to assert the following two claims: (1) his guilty plea before this
Court in the underlying federal case, Docket No. 06-cr-413 2, was involuntary because he was
rendered ineffective assistance of counsel; and (2) he failed to receive federal credit toward his
sentence for the time he served in federal custody pursuant to a writ of habeas corpus ad
prosequendum. (See Petition (“Pet.”), Dkt. Entry No. 1.) The government opposes the petition
in its entirety. (See Respondent’s Opposition (“Opp.”), Dkt. Entry No. 8.) For the reasons set
forth below: (1) the voluntariness of Petitioner’s guilty plea is dismissed as it is asserted
improperly under § 2241; and (2) the petition is transferred to the United States District Court for
the Southern District of New York (“SDNY”) for consideration of Petitioner’s federal prison
credit claim.
1
In reviewing petitioner’s motion, the court is mindful that, “[a] document filed pro se is to be liberally
construed and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation
omitted). Accordingly, the court interprets the petition “to raise the strongest arguments that [it] suggest[s].”
Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006) (emphasis omitted).
2
All references to “Docket No. 06-cr-413” are to the criminal case underlying the instant habeas petition.
BACKGROUND 3
On January 2, 1992, Petitioner was convicted of Robbery in the First and Second Degrees
in violation of New York Penal Law Sections 160.15 and 160.10, respectively. (Opp. at Exhibit
B, ¶¶ 75-76, Dkt. Entry No. 8-1.) Petitioner was sentenced to nine-to-eighteen (9 to 18) years’
imprisonment. (Id.) Petitioner was paroled in 2001, re-incarcerated in 2002, paroled in 2003, reincarcerated again in 2003, and paroled again on November 17, 2004, all for various New York
State offenses. (Id.)
On January 24, 2006, Petitioner again was found in violation of the conditions of his New
York State parole and taken into custody. (Opp. at Exhibit C, C6, Dkt. Entry No. 8-2.) On
August 9, 2006, while he was still in New York State custody for the parole violation, Petitioner
was transferred to the custody of the United States Marshals Service (“USMS”) pursuant to a
writ of habeas corpus ad prosequendum, and housed at the Metropolitan Detention Center
(“MDC”) in Brooklyn. (Opp. at Exhibit E.)
On February 9, 2007, while Petitioner was still housed at the MDC pursuant to the writ
ad prosequendum, he pled guilty in this Court to conspiracy to distribute and to possess with
intent to distribute cocaine base, committed between January 2003 and June 2006, in violation of
21 U.S.C. §§ 841, 846. (Opp. at 2; Superseding Indictment, Docket No. 06-cr-413, Dkt. Entry
No. 155.) On April 23, 2008, this Court sentenced Petitioner to a prison term of 235 months
followed by three years of supervised release with the recommendation that it run concurrently
with his state sentence. (April 23, 2008 Minute Entry, Docket No. 06-cr-413, Dkt. Entry No.
376.) Petitioner currently is incarcerated at the Federal Correctional Institution (“FCI”) in
Otisville, New York. (Pet. at 2.)
3
After an exhaustive review of Petitioner’s criminal history, the Court finds that the recitation of facts contained in
the government’s response to the order to show cause is accurate. Therefore, the fact summary contained in the
Background Section of this Memorandum & Order is largely taken from the government’s response.
2
On May 5, 2008, Petitioner filed a notice of appeal in the Second Circuit Court of
Appeals challenging his conviction and sentence. (Notice of Appeal, Docket No. 06-cr-413, Dkt.
Entry No. 381.) On May 15, 2008, during the pendency of this appeal, the Petitioner was
returned to state custody. (Opp., Exhibit E, Dkt. Entry No. 8-2.) On January 26, 2009, the
Second Circuit dismissed Petitioner’s appeal on the ground that it was barred by the waiver of
appellate rights contained in Petitioner’s plea agreement. (Mandate of USCA, Docket No. 06-cr413, Dkt. Entry No. 425.) Petitioner did not file a petition for a writ of certiorari with the
Supreme Court.
Upon satisfaction of the writ ad prosequendum 4 and Petitioner’s return to state custody
on May 15, 2008, Petitioner was charged with a second state parole violation for the acts
underlying his federal conviction, which were committed while he had been on state parole
between 2003 and 2006. (Opp. at Exhibit G, G5, Dkt. Entry No. 8-3.) On July 2, 2008, the New
York State Division of Parole sentenced Petitioner to two months’ imprisonment after finding he
had violated his parole. (Opp. at Exhibit G.) On August 15, 2008, Petitioner completed his state
parole violation sentence and was released on parole to the custody of the USMS to serve his
federal sentence. (Opp. at Exhibit I, Dkt. Entry No. 8-3.)
The United States Bureau of Prisons (“BOP”) determined that Petitioner’s federal
sentence of 235 months began running on August 15, 2008. (Opp. at 3.) Petitioner challenged
the BOP’s calculation of incarceration time and argued that he should have received credit for
the time he was held at the MDC from August 9, 2006 to May 15, 2008. (See Pet.) On
November 3, 2010, the BOP recalculated Petitioner’s federal sentence to begin on April 23,
4
A writ ad prosequendum orders the production of a prisoner in court for the purpose of standing trial.” Lugo v.
Hudson, 785 F.3d 852, 854 (2d Cir. 2015). “If a prisoner is serving a state sentence when he is produced for a
federal prosecution, the writ temporarily transfers him to federal custody for prosecution but the state retains
primary custody for the purpose of calculating his state sentence.” Id. at 854-55.
3
2008, the date that this Court imposed sentence. (Opp. at 3-4.) However, Petitioner contends
that he should be granted additional federal credit for the period from August 9, 2006, when the
writ ad prosequendum transferred him from state to federal custody, to April 22, 2008, the day
before this Court imposed the federal sentence. (See Pet.)
Petitioner further contests the legality of his guilty plea by alleging that his counsel
induced him to accept a plea bargain by informing Petitioner that the Court would run his state
parole time concurrent with his federal sentence. (Pet. at 3.) The government construes this
argument as an ineffective assistance of counsel claim and contends that it should be dismissed
as improperly asserted under § 2241. Moreover, the government counters Petitioner’s claim for
additional credit by arguing that this Court lacks the authority to adjudicate such a claim since
Petitioner is not incarcerated within the Eastern District of New York.
DISCUSSION
I.
Ineffective Assistance of Counsel Claim
Under Section 2241, federal prisoners who are “in custody in violation of the
Constitution or laws or treaties of the United States” may seek habeas corpus review. 28 U.S.C.
§ 2241(c)(3). Under this habeas provision, federal prisoners may challenge the manner in which
their sentence is implemented, as opposed to the underlying legality of the conviction. See
Carmona v. United States Bureau of Prisons, 243 F. 3d 629, 632 (2d Cir. 2001). Thus, a Section
2241 petition is limited to challenges “to the execution of a sentence,” which include challenges
to “the administration of parole, computation of a prisoner’s sentence by prison officials, prison
disciplinary actions, prison transfers, type of detention and prison conditions.” Levine v. Apker,
455 F. 3d 71, 78 (2d Cir. 2008). Indeed, Congress restricted the exercise of § 2241 jurisdiction
with the passage of 28 U.S.C. § 2255, “such that federal prisoners challenging the legality of
4
their convictions or sentences must proceed by way of motion pursuant to” § 2255. Cephas v.
Nash, 328 F.3d 98, 103 (2d Cir. 2003).
However, the Second Circuit acknowledged in
Triestman v. United States that § 2255 provides an exception to this restriction in its “savings
clause”:
An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not be
entertained if it appears that the applicant has failed to apply for relief, by motion,
to the court which sentenced him, or that such court has denied him relief, unless
it also appears that the remedy by motion is inadequate or ineffective to test the
legality of his detention.
124 F.3d 361, 373-74 (2d Cir. 1997) (quoting 28 U.S.C. § 2255). Triestman determined that the
meaning of the term “inadequate and ineffective” in § 2255’s savings clause referred to those
cases “in which the petitioner cannot, for whatever reason, utilize § 2255, and in which failure to
allow for collateral review would raise serious constitutional questions.” Triestman, 124 F.3d at
377. “Where a pro se prisoner can still pursue a timely § 2255 motion, a district court may not
construe an improperly filed § 2241 motion as a § 2255 motion without notice to the prisoner,
who can then decide either to agree to the recharacterization or to withdraw his filing.” Cephas,
328 F.3d at 104, n. 5.
Here, Petitioner’s claim that he received ineffective assistance of counsel with respect to
his guilty plea must be brought under a § 2255 motion because it falls within the scope of § 2255
and does not fit within the savings clause authorizing a petition under § 2241. However, this
claim is time barred. “A federal prisoner seeking relief under Section 2255 must generally file a
motion within one year from the latest of four benchmark dates: (1) when the judgment of
conviction becomes final; (2) when a government-created impediment to making such a motion
is removed; (3) when the right asserted is initially recognized by the Supreme Court, if it has
been made retroactively available to cases on collateral review; or (4) when the facts supporting
5
the claim(s) could have been discovered through the exercise of due diligence.” Torres v. United
States, 2012 WL 4646222, *1 (S.D.N.Y. Oct. 3, 2012). Furthermore, the Supreme Court has
held that “a conviction becomes final when the Supreme Court ‘affirms a conviction on the
merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a
certiorari petition expires.’” Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (quoting
Clay v. United States, 537 U.S. 522, 527 (2003)).
Since the Second Circuit dismissed Petitioner’s appeal on January 26, 2009 and
Petitioner did not seek certiorari to the Supreme Court, as the government correctly notes, the
judgment of conviction became final on April 27, 2009. “Where a defendant does not seek
Supreme Court review, a conviction becomes final when the time to seek such review expires, 90
days from the order affirming the conviction.” Gonzalez v. United States, 792 F.3d 232, 234 (2d
Cir. 2015). The April 27, 2009 date represents 90 days after the Second Circuit dismissed
Petitioner’s appeal. Therefore, Petitioner was required to file his § 2255 claim within one year of
that date, that is, by April 27, 2010. Petitioner filed the instant action on September 28, 2012,
more than two years after the one-year deadline imposed by § 2255(f). Accordingly, Petitioner’s
ineffective assistance of counsel claim is dismissed as untimely.
II.
This Court Lacks Jurisdiction to Consider Petitioner’s § 2241 Petition
It is well settled in this Circuit that, “[i]n order for a court to entertain a habeas corpus
action, it must have jurisdiction over the petitioner’s custodian.” Billiteri v. United States Board
of Parole, 541 F.2d 938, 948 (2d Cir. 1976). “Thus, a petition for a writ of habeas corpus under
28 U.S.C. § 2241 should be addressed to the district court in the district where the petitioner is
confined and his custodian is located. United States v. Maldonado, 138 F. Supp. 2d 328, 332
(E.D.N.Y. 2001). Here, Petitioner is incarcerated at FCI-Otisville and his custodian is located
6
there as well, which is located within the jurisdiction of the SDNY. Therefore, Petitioner should
have brought his § 2241 petition in the SDNY. Accordingly, this Court lacks authority to
adjudicate the petition.
CONCLUSION
For the reasons set forth above, Petitioner’s request for relief based on ineffective
assistance of counsel is denied. Petitioner is further denied a certificate of appealability with
respect to this claim as he fails to make a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see FED. R. APP. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Lucidore v. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this portion of the Order
would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
As this Court lacks subject matter jurisdiction over Petitioner’s § 2241 claims against the
BOP, due to his incarceration at FCI Otisville, the Clerk of Court is directed to TRANSFER this
case to the U.S. District Court for the Southern District of New York, pursuant to 28 U.S.C. §§
1406(a), 2241(a). This Court takes no position as to the merits of this claim. That provision of
Rule 83.1 of the Local Rules of the Eastern District of New York which requires a seven-day
delay is waived.
SO ORDERED.
DATED:
Brooklyn, New York
March 31, 2016
_____________/s/_____________
DORA L. IRIZARRY
United States District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?