Reyes v. Scism

Filing 24

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED THAT Magistrate Judge Mannion's R&R (Doc. 22) is ADOPTED. Mr. Reyes' petition for writ of habeas corpus (Doc. 1) is DISMISSED. The Clerk of Court is directed to mark the case as CLOSED. Signed by Honorable A. Richard Caputo on 1/6/12. (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MAXIMO REYES,
Petitioner,
v.

NO. 3:10-CV-1835

(JUDGE CAPUTO)

WILLIAM SCISM,
(MAGISTRATE JUDGE MANNION)
Respondent.
MEMORANDUM
Before the Court is Magistrate Judge Mannion’s report and recommendation
(“R&R”) (Doc. 22) on petitioner Reyes’ petition for writ of habeas corpus under 28 U.S.C.
§ 2241. Mr. Reyes, proceeding pro se, claims that he is being held in violation of the
Extradition Treaty between the United States and the Dominican Republic. Specifically,
he argues: 1) the crimes he was convicted of are not enumerated in the Treaty (violating
the “rule of specialty”); 2) he was convicted of a crime for which he was not extradited,
nullifying his conviction; and 3) the prosecution committed fraud upon the court. In his
response to an Order to Show Cause, Mr. Scism argued that relief under § 2241 requires
a prisoner establish that, due to a subsequent change in statutory interpretation, he is
actually innocent. In his R&R, Magistrate Judge Mannion recommended denial of the
petition on consecutive filings and abuse-of-the-writ grounds. Mr. Reyes incorrectly
argues, relying on pre-AEDPA case law, that the burden of demonstrating abuse-of-thewrit lies with the government. The Court will adopt the R&R because Mr. Reyes’ petition
violates the abuse-of-the-writ doctrine. More fundamentally, he is not claiming actual
innocence, the only ground the Third Circuit has recognized for relief under § 2241.

BACKGROUND
An arrest warrant for Mr. Reyes was issued on March 7, 1991, out of the United
States District Court for the Southern District of New York for racketeering, drug trafficking
and related offenses. A second arrest warrant was issued on September 11, 1991, from
the same court and for the same offenses.
On July 10, 1997, the Embassy of the United States made a request for the
extradition of Mr. Reyes under the Treaty. The President of the Dominican Republic
authorized Mr. Reyes’ extradition by executive decree on August 12, 1997. On August
13, 1997, Mr. Reyes was transported to the United States and arrested. Mr. Reyes
subsequently pleaded guilty to two counts of racketeering and conspiracy to commit
murder and was sentenced to an aggregate term of thirty years in prison. Mr. Reyes did
not appeal his conviction, nor did he challenge his conviction through a §2255 motion.
On August 13, 2001, Mr. Reyes filed a petition for a writ of mandamus to compel
the United States Attorney’s office to file an application for a reduction of sentence
pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. He also sought
permission to file a motion pursuant to 28 U.S.C. § 2255 beyond the applicable one-year
limitation period. On May 9, 2002, the United States District Court for the Southern
District of New York denied Mr. Reyes’s writ of mandamus and motion for permission to
file a §2255 motion beyond the limitation period.
Mr. Reyes subsequently filed a motion pursuant to Rule 60(d)(3) of the Federal
Rules of Civil Procedure seeking to have the judgment in the Southern District of New
York set aside claiming that the government perpetrated a fraud on the court by failing to
disclose information regarding his deportation from the Dominican Republic. This motion
2

was denied by order dated November 10, 2008.
In the meantime, on August 8, 2007, Mr. Reyes filed a petition for a writ of habeas
corpus in this District pursuant to §2241, alleging that he was unlawfully extradited in
contravention of the Dominican Republic’s national law. By report dated September 14,
2007, Magistrate Judge Mannion recommended that the petition be dismissed because
Mr. Reyes lacked standing to bring the action and failed to present a cognizable claim.
By memorandum and order dated November 8, 2007, the report was adopted by the
Court and the petition dismissed. In addressing Mr. Reyes’ objections to the report, the
Court found that there was no merit to Mr. Reyes’ argument that he was not tried for the
crimes for which he was extradited in violation of Article IV of the Treaty and United States
v. Rauscher, 119 U.S. 407, 420 (1886) (extradited individual could only be tried for
specific offenses for which extradition was sought pursuant to “rule of specialty”). The
Third Circuit summarily affirmed the Court’s holding that neither the Treaty between the
United States and the Dominican Republic nor Supreme Court precedent had been
violated in Mr. Reyes’s case.
Mr. Reyes filed a second §2241 petition on April 16, 2009, in which he claimed, as
he had previously, that the doctrine of specialty was violated because he was not
convicted on the charges for which he was originally extradited from the Dominican
Republic. By memorandum and order dated November 18, 2009, the Court adopted the
report and recommendation of Magistrate Judge Mannion and found that the petition was
barred by the doctrine of res judicata.
Mr. Reyes filed the instant §2241 petition on August 31, 2010, in which he now
claims that the crimes he was convicted of are not covered under the Treaty between the
3

United States and the Dominican Republic. Specifically, he states that the crimes he was
convicted of “are not enumerated in the applicable extradition treaty, thus demolishing the
Court’s jurisdiction.” Mr. Reyes also, once again, argues a violation of the “rule of
specialty.” Finally, he claims the prosecution perpetrated fraud upon the court in relation
to the facts surrounding his extradition from the Dominican Republic.
A response to the petition was filed on February 28, 2011. Respondent argues that
the court should dismiss the petition because Mr. Reyes cannot challenge his conviction
and federal sentence via a §2241 habeas petition. Mr. Reyes filed a traverse as well as
an objection to the Magistrate Judge’s R&R.
STANDARD OF REVIEW
Where objections to the magistrate judge’s report are filed, the Court must conduct
a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d
1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are
both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de
novo review, the Court may accept, reject, or modify, in whole or in part, the factual
findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens
v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the
statute permits the Court to rely on the recommendations of the magistrate judge to the
extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980);
Goney, 749 F.2d at 7; Ball v. United States Parole Comm’n, 849 F. Supp. 328, 330 (M.D.
Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined
by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at

4

7. At the very least, the Court should review uncontested portions for clear error or
manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
DISCUSSION
Mr. Reyes’ petition will be dismissed because it violates the abuse-of-the-writ
doctrine, and because Third Circuit has held that relief under § 2241 is only available to
prisoners who demonstrate actual innocence due to a subsequent change in statutory
interpretation.
Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal
prisoners can challenge their convictions or sentences that are allegedly in violation of the
Constitution. See Davis v. United States, 417 U.S. 333, 343(1974). A “safety valve”
provision allows challenges to a conviction or sentence in certain narrow circumstances
via the federal courts' § 2241 jurisdiction when a prisoner can show that § 2255 is
“inadequate or ineffective to test the legality of his detention.” § 2255(e). The safety valve
provision was not amended by AEDPA. Section 2241 states that “[w]rits of habeas corpus
may be granted by the Supreme Court, any justice thereof, the district court and any
circuit judge within their respective jurisdictions” to prisoners “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a),(c)(3).
In In re Dorsainvil, the Third Circuit interpreted the statutory language providing that
§ 2255 must be used to raise a challenge to the validity of a conviction or sentence unless
that section is “inadequate or ineffective.” 119 F.3d 245, 251 (3d Cir.1997). In that case,
the appellant was in the “unusual position” of having no prior opportunity to challenge his
conviction for a crime that an intervening change in substantive law could negate with

5

retroactive application. Id. The Third Circuit therefore allowed the § 2241 petition to go
forward since a subsequent change of law made the conduct the appellant was convicted
of no longer criminal. Dorsainvil, 119 F.3d at 251-52. In the narrow circumstances the
appellant in that case faced, the Dorsainvil court held that § 2255 was inadequate to test
the legality of his detention. Id. at 251.
Section 2244, a provision of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), establishes the procedural and substantive requirements which govern
“second or successive” habeas petitions. See In re Minarik, 166 F.3d 591, 599-600 (3d
Cir.1999). As a procedural matter, § 2244(b)(3)(A) establishes a “gatekeeping”
mechanism that requires a prospective applicant to “file in the court of appeals a motion
for leave to file a second or successive habeas application in the district court.” Felker v.
Turpin, 518 U.S. 651, 657 (1996). Once a petitioner moves for authorization to file a
second or successive petition, a three-judge panel of the court of appeals must decide
within thirty days whether there is a prima facie showing that the application satisfies §
2244's substantive requirements. 28 U.S.C. § 2244(b)(3)(D).
The Third Circuit has noted that § 2241 petitions are not subject to the gatekeeping
mechanism of § 2244(b). In other words, a petitioner need not seek permission from a
court of appeals before filing a second or successive § 2241 petition. See Zayas v. INS,
311 F.3d 247, 255 (3d Cir.2002). However, the Third Circuit has also recognized that the
“abuse-of-the-writ” doctrine applies to section 2241 petitions. The “abuse-of-the-writ”
doctrine bar claims that could have been raised in an earlier habeas corpus petition.
McCleskey v. Zant, 499 U.S. 467, 493-95 (1991). Thus, a subsequent petition that

6

challenges the administration of a sentence is clearly not a “second or successive” petition
within the meaning of § 2244 if the claim had not arisen or could not have been raised at
the time of the prior petition. See Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir.2003).
But a petitioner may not raise new claims that could have been resolved in a previous
action. Zayas, 311 F.3d at 257.
[T]he provisions of § 2244(b) refer specifically to claims presented in a second
or successive habeas corpus petition filed pursuant to 28 U.S.C. § 2254 and
therefore do not apply to a petition filed pursuant to § 2241. However, §
2244(a), as set forth in the margin, does not reference § 2254, and thus by its
terms applies to any application for a writ of habeas corpus filed by a person
who is in detention pursuant to a judgment of a court of the United State s.
Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (internal citations omitted).
Here, Mr. Reyes’ petition violates the “abuse-of-the-writ” doctrine. His petition
contains three arguments: 1) the crimes he was convicted of are not enumerated in the
treaty; 2) he was convicted of a crime for which he was not extradited (violating the “rule
of specialty”); and 3) the prosecution committed fraud upon the court. He has previously
raised (2) and could have raised (1) and (3) before but failed to. While he dwells at length
in his brief on delays in the government’s response to his information requests, these
delays do not explain this failure. More fundamentally, relief under § 2241 is typically only
available where a subsequent statutory interpretation reveals that a prisoner’s conduct is
no longer criminal. Mr. Reyes is not claiming that here. For these reasons, the R&R will
be adopted and the petition denied.

7

CONCLUSION
The Court will adopt the Magistrate Judge’s R&R and dismiss Mr. Reyes’
application. An appropriate order follows

6/1/12
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MAXIMO REYES,
NO. 3:10-CV-1835

Petitioner,
v.

(JUDGE CAPUTO)

WILLIAM SCISM,
(MAGISTRATE JUDGE MANNION)
Respondent.
ORDER
NOW, this

6th

day of January, 2012, IT IS HEREBY ORDERED THAT

Magistrate Judge Mannion’s R&R (Doc. 22) is ADOPTED. Mr. Reyes’ petition for writ
of habeas corpus (Doc. 1) is DISMISSED. The Clerk of Court is directed to mark the
case as CLOSED.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge