Acosta v. Ebbert
Filing
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MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 2/1/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HANOI BARBARO ACOSTA,
Petitioner
vs.
WARDEN EBBERT,
Respondent
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CIVIL NO. 1:16-CV-02232
(Judge Rambo)
MEMORANDUM
Background
Hanoi Barbara Acosta, a federal inmate presently
confined at the United States Penitentiary at Lewisburg,
Lewisburg, Pennsylvania, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. §2241, in which he
named the warden of that facility as the Respondent.
(Doc. 1.)
A review of Acosta’s petition and accompanying
memorandum and attachments thereto reveals that on July
25, 2007, a federal grand jury in the District of
Arizona returned a two-count indictment charging Acosta
with child sex trafficking (Count 1) and interstate
transportation of a minor for prostitution (Count 2).
On May 23, 2008, after a seven-day jury trial Acosta was
found guilty by the jury of Count 2 but the jury was
unable to reach a verdict on Count 1.
Subsequently,
Count 1 was dismissed by the court on motion of the
United States.
On October 15, 2008,
the district court
sentenced Acosta to a term of imprisonment of 262
months.
A direct appeal was taken to the Court of
Appeals for the Ninth Circuit which affirmed the
conviction and sentence and then Acosta pursued a
petition for certiorari with the Supreme Court which was
denied on November 15, 2010.
On February 21, 2012,
Acosta filed with the district court a motion to vacate,
set aside, and correct sentence pursuant to 28 U.S.C. §
2255 which was denied by that court on March 4, 2013.
Subsequent proceedings in the district court were
unsuccessful and on February 2, 2015, the Court of
Appeals for the Ninth Circuit denied an application by
Acosta to file in the district court a second § 2255
motion.
On April 13, 2016, a motion filed by Acosta to
recall the mandate was denied by the Ninth Circuit.
In the present § 2241 habeas petition, Acosta
claims that he recently discovered new evidence which
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establishes his actual innocence and he requests that
this court vacate or set aside his conviction and
sentence, and grant him a new trial.
The so-called new
evidence consists of two affidavits executed in May and
June, 2016, and appear to reveal that a female witness
who testified against Acosta at trial has recanted her
testimony and she only testified against Acosta because
of pressure put on her by federal agents. (Doc. 2-1, at
6-7, 10-12.)
The petition will now be given preliminary
consideration pursuant to Rule 4 of the Rules Governing
§ 2254 Cases, 28 U.S.C. foll. § 2254, as made applicable
to § 2241 cases by Rule 1 thereof.1
For the reasons set
forth below, the petition will be dismissed summarily.
Discussion
A federal criminal defendant's conviction and
sentence are subject to collateral attack in a
Rule 4 states in pertinent part that “[t]he clerk
must promptly forward the petition to a judge under the
court’s assignment procedure, and the judge must
promptly examine it. If it plainly appears from the
petition and any attached exhibits that the petitioner
is not entitled to relief in the district court, the
judge must dismiss the petition . . . .”
1.
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proceeding before the sentencing court pursuant to 28
U.S.C. § 2255.
E.g., United States v. Addonizio, 442
U.S. 178, 179 (1979).
The United States Court of
Appeals for the Third Circuit has held that as to issues
cognizable by the sentencing court under § 2255, a
motion under § 2255 "supersedes habeas corpus and
provides the exclusive remedy."
Strollo v. Alldredge,
463 F.2d 1194, 1195 (3d Cir.) (per curiam), cert.
denied, 409 U.S. 1046 (1972).
In Acosta’s petition filed in this court, Acosta
clearly maintains that his federal conviction violates
his federal statutory and constitutional rights.
Thus,
his proper avenue of relief is a section 2255 motion
filed in the district court where he was convicted and
sentenced.
Acosta is challenging his conviction on the
basis of newly discovered evidence.
This is the type of
claim which should be presented to the court that
sentenced Acosta.
Section 2255 provides, in part, that "[a]n
application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
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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"
(emphasis added).
A motion under § 2255 is "'inadequate or
ineffective'" only where it is established "'that some
limitation of scope or procedure would prevent a Section
2255 proceeding from affording the prisoner a full
hearing and adjudication of his claim of wrongful
detention.'"
Application of Galante, 437 F.2d 1164,
1165 (3d Cir. 1971) (per curiam) (quoting United States
ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir.
1954)).
It has been recognized that the burden is on
the habeas petitioner to allege or demonstrate
inadequacy or ineffectiveness.
See Id.; Cagle v.
Ciccone, 368 F.2d 183, 184 (8th Cir. 1966).
Furthermore, prior unsuccessful § 2255 motions filed in
the sentencing court are insufficient in and of
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themselves to show that the motion remedy is inadequate
or ineffective.
Tripati v. Henman, 843 F.2d 1160, 1162
(9th Cir.), cert. denied, 488 U.S. 982 (1988); Litterio
v. Parker, 369 F.2d 395, 396 (3d Cir. 1966) (per
curiam).
"It is the inefficacy of the remedy, not a
personal inability to utilize it, that is determinative
. . . ."
Garris v. Lindsay, 794 F.2d 722, 727 (D.C.
Cir.) (emphasis added), cert. denied, 479 U.S. 993
(1986).
It is the petitioner's burden to prove that
§2255 would be an inadequate or ineffective remedy.
Reyes-Requena v. United States, 243 F. 3d 893, 901 (5th
Cir. 2001) (citing Pack v. Yusuff, 218 F.3d 448, 452
(5th Cir. 2000)).
Acosta has not met this burden. At
best under the present circumstances Acosta may
demonstrate a personal inability to utilize the § 2255
remedy, but he does not establish the inadequacy or
ineffectiveness of the remedy itself.
See Jeffers v.
Holland, Civil No. 97-1203, (M.D. Pa. Nov. 7, 1997)
(Conaboy, J.); Berry v. Lamer, Civil No. 96-1678, slip
op at 13-14 (M.D. Pa. April 30, 1997) (Kosik, J.)
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(finding that existence of two orders from circuit court
warning petitioner that no other submissions shall be
filed or entertained in his case, did not render his
remedy by way of § 2255 motion inadequate or
ineffective); Holland v. Harding, Civil No. 95-0870,
slip op at 4 (M.D. Pa. Nov. 21, 1995) (McClure,
J.)(holding that entering into a sentencing agreement
wherein the right to challenge the conviction or
sentence by direct appeal or by § 2255 motion is waived
does not render a § 2255 motion inadequate or
ineffective); see also In re Dorsainvil, 119 F.3d 245,
251 (3d Cir. 1997) (denying motion for certification to
file a second § 2255 petition without prejudice to
petitioner filing a § 2241 habeas corpus petition
because passage of a subsequent law may negate the crime
of which he was convicted, the Third Circuit Court of
Appeals stated in dicta, “[w]e do not suggest that §
2255 would be ‘inadequate or ineffective’ so as to
enable a second petitioner to invoke § 2241 merely
because that petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.
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Such a
holding would effectively eviscerate Congress’s intent
in amending § 2255.”).
The legislative limitations on successive § 2255
proceedings do not render the remedy either inadequate
or ineffective so as to authorize pursuit of a habeas
corpus petition in this Court.
To hold otherwise would
simply effect a transfer of forum for the adjudication
of successive challenges to the validity of a
conviction.
That Congress did not intend such a result
is made manifest by 28 U.S.C. § 2244(a), which provides
that no district judge "shall be required to entertain
an application for a writ of habeas corpus to inquire
into the detention of a person pursuant to a judgment of
a court of the United States if it appears that the
legality of such detention has been determined by a
judge or court of the United States on a prior
application for a writ of habeas corpus, except as
provided in Section 2255."
As noted above, § 2255
authorizes a district court to consider a habeas corpus
petition of a federal prisoner only if the § 2255 motion
is inadequate or ineffective. Clearly in view of the
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fact that Acosta has already filed a § 2255 motion
regarding his conviction, that remedy has proven to be
an affective and adequate means for him to challenge the
legality of his detention.
Thus, the court will dismiss Acosta’s petition
for a writ of habeas corpus under 28 U.S.C. § 2241,
without prejudice to any right Acosta may have to seek
leave to file a successive § 2255 motion in the
sentencing court relating to the claim of newly
discovered evidence.
Finally, Acosta is not detained because of
process issued by a state court and the petition is not
brought pursuant to 28 U.S.C. § 2255, no action by this
court with respect to a certificate of appealability is
necessary.
An appropriate order will be entered.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Date: February 1, 2017
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