Bussie v. Federal Public Defender Organization

Filing 6

MEMORANDUM & ORDER [DISMISSING CASE]: The Court grants Petitioner's 5 motion to proceed IFP for purposes of this Order and dismisses the 1 Petition for a Writ of Habeas Corpus. As Petitioner has not made a substantial showing of th e denial of constitutional right, a Certificate of Appealability will not issue. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Margo K. Brodie, on 11/30/2015. C/mailed. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------ANTHONY BUSSIE,
Petitioner,
v.

NOT FOR PUBLICATION
MEMORANDUM & ORDER
15-CV-4722 (MKB)

FEDERAL PUBLIC DEFENDER
ORGANIZATION,
Respondent.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On August 10, 2015, Petitioner Anthony Bussie, proceeding pro se, filed the instant
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Pet., Docket Entry No. 1.)
On August 31, 2015, Petitioner moved for leave to proceed in forma pauperis (“IFP”) pursuant
to 28 U.S.C. § 1915. (Docket Entry No. 5.) For the reasons discussed below, the Court grants
Petitioner’s motion to proceed IFP for purposes of this Order and dismisses the petition.
I.

Background
Although not included in the caption of the form petition, Petitioner lists Thomas Young,

Richard Coughlin, Joseph B. Gilbert, Susan Umstead, Stephen Gordon, Robert E. Andrews and
John Boehner as respondents in the body of the petition. (Pet. 2. 1) Court records reflect that, on
April 2, 2015, the United States District Court for the Eastern District of North Carolina ordered
petitioner committed to the custody of the United States Attorney General pursuant to 18 U.S.C.
§ 4246. United States v. Bussie, No. 5:14-HC-2186 (E.D.N.C.), Docket Entry No. 16. Petitioner
1

Because the petition is not consecutively paginated, the Court refers to the page
numbers assigned by the Electronic Document Filing System.

appealed that commitment, and his appeal is currently pending before the United States Court of
Appeals for the Fourth Circuit. See Bussie, No. 5:14-HC-2186 (E.D.N.C.), Docket Entry Nos.
20–21. Petitioner states that the instant § 2241 petition arises from his current civil commitment
and pending case in the Eastern District of North Carolina. 2 (Pet. 3.) The petition, which is
largely incomprehensible, lists multiple grounds for relief referencing, among other things,
constitutional amendments, various federal anti-discrimination laws and criminal statutes.
(Pet. 6–7.) Petitioner demands “a settlement law due process,” that there be investigations into
government waste and fraud and congressional oversight, the civil commitment and recusal of
respondent Thomas Young and “an appeal [of] due process.” (Pet. 7.)
II. Discussion
At the outset, the Court notes that prior to the filing of this action, Petitioner accrued
three strikes under the Prison Litigation Reform Act’s (“PLRA”) “Three Strikes Provision.” 3

2

The petition is vaguely worded and references alleged acts by numerous individuals
and the Federal Public Defender Organization. (Pet. 2–3.) Nevertheless, Petitioner is attempting
to challenge his civil commitment, asserting that the “Fed[eral] Pub[lic] Def[ender]
Organ[ization] is a no-good alter ego agency with no defensive reason-excuse to move into a
civil commitment,” and challenging a “John Hinckley case law proceeding to civilly commit.”
(Id.)
3

This is the eighth action Petitioner has filed in the United States District Court for the
Eastern District of New York. Petitioner has filed over one hundred actions in federal district
courts across the United States and is under a filing injunction in the District of New Jersey, his
pre-incarceration domicile. See U.S. Party/Case Index, pcl.uscourts.gov/search (last visited Nov.
30, 2015); Conjured Up Entm’t v. United States, No. 11-CV-2824 (D.N.J. filed July 26, 2011).
At least three of his many civil actions, including his first action in this Court, have been
dismissed as frivolous under 28 U.S.C. § 1915A(b). See Bussie v. Dep’t of Def., No. 13-CV4574, 2013 WL 5348311, at *2 (E.D.N.Y. Sept. 23, 2013); Bussie v. Att’y Gen., No. 13-CV-476,
2013 WL 3934179, at *3 (W.D. Wis. July 30, 2013) (consolidated action). In addition, multiple
district courts, including this one, have dismissed Petitioner’s recent cases as barred by the
PLRA’s three strikes provision. See Bussie v. Bharara, No. 15-CV-3237, 2015 U.S. Dist.
LEXIS 77920, at *3–4 (E.D.N.Y. June 16, 2015); Bussie v. Mohamed, No. 14-CV-5454, 2014
WL 7338802, at *2 (E.D.N.Y. Dec. 22, 2014); Bussie v. Gov. Accountability Office, No. 14-CV-

2

The PLRA provides that:
In no event shall a prisoner bring a civil action . . . if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g). However, it is unsettled within the Second Circuit whether a petition
pursuant to § 2241 is a “civil action” for the purposes of the PLRA. While the Second Circuit, in
Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996), indicated that “habeas corpus petitions” are not civil
actions covered by the PLRA, it did not discern among habeas petitions seeking to overturn a
criminal conviction or sentence pursuant to § 2254 (for petitions challenging state convictions),
or § 2255 (for petitions challenging federal convictions), or habeas petitions challenging
conditions of confinement under § 2241. See Reyes, 90 F.3d at 678 (“There is nothing in the text
of the PLRA or its legislative history to indicate that Congress expected its filing fee payment
requirements to apply to habeas corpus petitions.”). In Jones v. Smith, 720 F.3d 142 (2d Cir.
2013), the Second Circuit recognized the lack of clarity in its Reyes decision, stating:
We nonetheless assume without deciding that, in so saying, the
court [in Reyes] meant habeas corpus petitions that challenge
criminal convictions and sentences, and not petitions, sometimes
brought under 28 U.S.C. § 2241, that complain of conditions of
confinement, which are analogous to suits under 42 U.S.C. § 1983
2665, 2014 WL 2178212, at *2 (E.D.N.Y. May 23, 2014); Bussie v. Boehner, 21 F. Supp. 2d
244, (E.D.N.Y. 2014); Bussie v. Boehner, No. 14-CV-161, 2014 U.S. Dist. LEXIS 27479, at *4–
6 (D. Colo. Mar. 4, 2014); Bussie v. Boehner, No. 14-CV-279, 2014 U.S. Dist. LEXIS 26229, at
*1 (N.D. Tex. Feb. 28, 2014); Bussie v. Boehner, No. 14-CV-345, 2014 U.S. Dist. LEXIS 25063,
at *1 n.2 (E.D. Mo. Feb. 27, 2014) (collecting prior strikes and dismissals under section
1915(g)); Bussie v. Boehner, No. 14-CV-77, 2014 WL 585377, at *2 (S.D. Ill. Feb. 14, 2014).
Petitioner has previously filed a habeas petition with this Court pursuant to 28 U.S.C. §§ 2241
and 2255, which was also dismissed. Bussie v. United States, No. 14-CV-7010 (E.D.N.Y. filed
Feb. 25, 2015).

3

complaining of conditions of confinement. The logic of our
opinion in Reyes was to distinguish between civil actions covered
by the PLRA and others based on the type of relief sought, rather
than the statute under which relief was sought.
Jones, 720 F.3d at 145 n.3. Here, while it is unclear whether the petition is subject to the
PLRA’s three strikes provision, the Court grants Petitioner’s request to proceed IFP solely for
the purposes of this Order.
The Court does not have jurisdiction over the Petition, as it must be filed in the judicial
district in which Petitioner is incarcerated. See 28 U.S.C. § 2241(a) (providing federal courts
with power to grant a writ of habeas corpus only “within their respective jurisdictions”);
Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (“The plain language of the habeas statute . . .
confirms the general rule that for core habeas petitions challenging present physical confinement,
jurisdiction lies in only one district: the district of confinement.”); Boone v. Manifee, 387 F.
Supp. 2d 338, 344 (S.D.N.Y. 2005) (holding that the petitioner must name his warden as
respondent and file the petition in the district of confinement). Petitioner is confined at the
Federal Medical Center in Butner, North Carolina. (Pet. 1.) Accordingly, the Court lacks
jurisdiction to adjudicate the instant petition.
The Court recognizes its discretion to transfer a § 2241 petition over which it lacks
jurisdiction in the interest of justice. See Adeleke v. United States, 355 F.3d 144, 152 (2d Cir.
2004) (“[T]he 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 or
noticed . . . .” (first two alterations in original)). The Court declines to exercise its discretion
here as transfer would not serve the interests of justice. Petitioner is a serial filer, and review of
the petition reveals that it likely has no merit.

4

III. Conclusion
Accordingly, the petition for a writ of habeas corpus is dismissed for the reasons set forth
above. As Petitioner has not made a substantial showing of the denial of constitutional right, a
certificate of appealability will not issue. 28 U.S.C. § 2253. The Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma
pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438,
444–45 (1962).
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: November 30, 2015
Brooklyn, New York

5