Cardona v. Thomas

Filing 11

MEMORANDUM Accordingly, we will adopt the R&R of the Magistrate Judge. We will transfer this Petition to the Western District of Texas. An appropriate Order follows. Signed by Honorable Robert D. Mariani on 8/26/13. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSE CRISTOBAL CARDONA,

Petitioner,

CIVIL NO. 3:13-CV-01179

v.
(Judge Mariani)

..IEFFREY THOMAS,
Respondent.

MEMORANDUM
I.

Introduction
Petitioner Jose Cristobal Cardona ("Petitioner" or "Cardona"), a federal prisoner

currently incarcerated at the United States Penitentiary, Lewisburg ("USP Lewisburg"),
initiated the above-captioned action by filing a Petition for Writ of Habeas Corpus ("Petition")
under the provisions of 28 U.S.C. § 2241. (Doc. 1). Griffin is presently serving a 480-month
federal sentence for drug trafficking charges that was imposed upon him in the Western
District of Texas. His Petition claims unlawful conviction, denial of counsel, and involuntary
servitude. (ld. at p. 1).
On May 2, 2013, Magistrate Judge Martin C. Carlson issued a Report and
Recommendation ("R&R") recommending that the Petition be dismissed or transferred to
the Western District of Texas for consideration as asecond or successive motion to correct.
(Doc. 4). On May 10, 2013, Petitioner filed objections to the R&R of the Magistrate Judge.

(Doc. 7). For the reasons set forth herein, we will adopt the R&R of the Magistrate Judge

and transfer the Petition to the Western District of Texas.

II.

Background

Petitioner was sentenced to 480 months of imprisonment by the Western District of
Texas in 2009. (Doc. 1). In his Petition, Cardona explains his previous appeal history with
this case, including a direct appeal and a post-conviction petition filed pursuant to 28 U.S.C.

§ 2255. (Id.). The issues raised in those proceedings closely mirror the issues raised in his
current Petition. The claims have been thoroughly examined by both the sentencing court
and the court of appeals.
III.

Standard of Review

When objections are 'filed to a report and recommendation of a magistrate judge, we
review de novo the portions of the report to which objections are made. 28 U.S.C. §
636(b)(1)(C); see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). Written
objections to a report and recommendation must "specifically identify the portions of the
proposed findings, recommendations or report to which objection is made and the basis for
such objections." MD. Pa. Local R. 72.3. We may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §
636(b){1); M.D. Pa. Local R. 72.3. Although our review is de novo, we are permitted to rely
upon the magistrate judge's proposed recommendations to the extent that we, in the

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exercise of sound discretion, deem proper. See United States v. Raddatz, 447 U.S. 667,

676 (1980); see also Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
IV.

Discussion

Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4
("Preliminary Review; Serving the Petition and Order") of the Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foil. § 2254 (1977) (applicable to §
2241 petitions through Rule 1(b)). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59
(M.D.Pa.1979).
Rule 4 provides, in pertinent part, "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 and direct the clerk to notify the petitioner." A petition may be dismissed
without review of an answer "when the petition is frivolous, or obviously lacking in merit, or
where ... the necessary facts can be determined from the petition itself." Allen v. Perini, 424
F.2d 134, 141 (6th Cir.1970), cert. denied, 400 U.S. 906 (1970). The Allen court also stated
that "the District Court has a duty to screen out a habeas corpus petition which should be
dismissed for lack of merit on its face." Id.
Motions filed pursuant to 28 U.S.C. § 2255 are the exclusive means by which a
federal prisoner can challenge a conviction or sentence that allegedly is in violation of the
Constitution or federal laws, or that is otherwise subject to collateral attack. Davis v. United
States, 417 U.S. 333, 343 (1974): United States ex reI. Leguillou v. Davis, 212 F .2d 681,
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693 (3d Cir.1954). Habeas relief under 28 U.S.C. § 2241 only is available to a petitioner if a

§ 2255 motion is Uinadequate or ineffective to test the legality of his detention." See 28 U
.S.C. § 2255(e); see also Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); In re
Dorsainvil, 119 F.3d 245,251 (3d Cir. 1997).
lilt is the inefficacy of the remedy, not the personal inability to use it,that is
determinative." Cradle v. United States, 290 F.3d 536,538 (3d Cir.2002). "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." Id. at 539. Rather, the Usafety valve"
provided under § 2255 is extremely narrow and has only been applied in unusual situations,
such as those in which a prisoner has had no prior opportunity to challenge his conviction
for conduct later deemed to be noncriminal by a change in law. Okereke, 307 F.3d at 120
(citing In re Dorsainvil, 119 F.3d at 251) (emphasis added).
Applying the foregoing principles here, we find that Cardona has not demonstrated
that the remedy provided under § 2255 would be inadequate or ineffective to test the legality
of his detention. Cardona argues in his objections that he has had difficulty filing his Petition
in the Western District of Texas, and as such, has demonstrated that required inadequacy
or inefficacy. We do not find this objection persuasive because we will transfer the Petition

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to the Western District of Texas pursuant to 28 U.S.C. § 1404.1 We note that Petitioner
objects to the transfer, but we find his objection unpersuasive. (Doc. 7). Venue,
convenience, the interests of justice, and protecting the Petitioner's rights as a pro se litigant
show that transfer is appropriate.
Accordingly, we will adopt the R&R of the Magistrate Judge. We will transfer this
Petition to the Western District of Texas. An appropriate Order follows.

obert D. Mariani
United States District Judge

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district of division where it might have been brought." 28 U.S.C. § 1404(a).
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