Caraballo Martinez v. Mansukhani
Filing
27
ORDER RULING ON REPORT AND RECOMMENDATION 12 . The Magistrate Judges Report and Recommendation is ADOPTED, and Petitioners Petition for § 2241 relief is DISMISSED without prejudice. The legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 7/26/2017. (kric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Pedro R. Caraballo Martinez,
#60136-004,
Petitioner,
v.
Warden Andrew Mansukhani,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.: 6:15-cv-01331-JMC
ORDER AND OPINION
This matter is before the court pursuant to the Magistrate Judge’s Report and
Recommendation recommending that Petitioner’s 28 U.S.C. § 2241 Petition (ECF No. 1-1) be
dismissed without prejudice and without requiring Respondent to file an answer. (ECF No. 12.)
The Magistrate Judge further recommends that the district court deny the certificate of
appealability. (ECF No. 12.) Petitioner timely objects. (ECF No. 21.)
For the following reasons, the Magistrate Judge’s Report and Recommendation is
ADOPTED, and Petitioner’s § 2241 Petition is DISMISSED without prejudice after de novo
review.
I. PROCEDURAL HISTORY
Petitioner Pedro Carballo Martinez, 20, is a foreign-born federal inmate currently serving
a life sentence at FCI-Estill for carjacking, hostage taking, conspiracy to commit both, and using
a firearm during a crime of violence. (ECF No. 12 at 1–3 (citing United States v. Ferreira, 285
F.3d 1020, 1022–23 (11th Cir. 2009)).) Petitioner is proceeding pro se and is therefore entitled to
liberal construction of his filings. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam).
Petitioner alleges that on June 2, 2000, he, along with Ewin Oscar Martinez, 47, and Jean
1
Carlo Ferreira, (age unknown), were found guilty in the Southern District of Florida for violating
18 U.S.C. § 1203 (the Hostage Taking Act), carjacking, conspiracy, and use of a firearm during a
crime of violence. (ECF No. 21.) On December 11, 2001, Petitioner and Co-Defendants’ guilt
was affirmed on appeal by the Eleventh Circuit. Ferreira, 285 F.3d at 1022.
Petitioner alleges that in 2003 he filed a motion to vacate under § 2255 in the Southern
District of Florida which was denied as untimely and was accompanied by a denial of a
Certificate of Appealability. (ECF Nos. 1 at 2 and 1-1 at 3). On March 25, 2015, Petitioner filed
a Petition seeking habeas relief pursuant to 28 U.S.C. § 2241 based on developments in Bond v.
United States, 134 S. Ct. 2077 (2014). Petitioner believes Bond invalidates his original
conviction under 18 U.S.C. §1203(a) on the grounds he should have been tried under Florida
state law for kidnapping and not a federal law governing hostage taking. (ECF Nos. 1, 1-1, 12.)
Petitioner’s rationale relies on the alleged fact that the explicit congressional intended purpose of
§ 1203 is to target extranational terrorism and that using the act to go after what he alleges is a
purely “intrastate kidnapping” is unconstitutional as Bond requires that courts determine whether
Congress clearly intended for the act to reach “purely local crimes” before interpreting expansive
language as intruding upon a State’s police power. 134 S. Ct. at 2081-82.
On April 9, 2015, Magistrate Judge Kevin F. McDonald issued his Report and
Recommendation (ECF No. 12), recommending dismissal of the Petition. The parties were
advised of their right to file objections to the Report. (ECF No. 12.) Petitioner filed timely and
specific objections on June 22, 2015. (ECF No. 21.)
II. ANALYSIS OF RECOMMENDATION AND OBJECTIONS
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
2
recommendation to this court, which has no presumptive weight. The responsibility to make a
final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo determination of those portions of the
Report to which specific objections are made. Diamond v. Colonial Life and Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
The incident in question is the kidnapping and imprisonment of Christina Aragao and her
two children, one an infant, in a home for four days by Petitioner and two others. (ECF No. 12.)
The Magistrate Judge, according to his reading of the current standing conviction from United
States v. Ferreira, cites Petitioner as the “leader of the conspiracy.” (ECF No. 12, p. 1 (citing to
275 F.3d 1020, 1022 (11th Cir. 2001)).) The Magistrate Judge’s liberal construction of
Petitioner’s claim (ECF No. 12 at 3-4) can be summarized in the following arguments: (1) that
Petitioner and Co-Defendants planned to kidnap Alceu Aragao for ransom; (2) if Mr. Aragao did
not comply they planned on kidnapping his family for the same purpose; (3) Co-Defendants
never formally requested a ransom, although a destroyed ransom note was found in a trash bin by
the FBI after the incident; (4) Petitioner alleges there was never an actual threat to detain
Christina or the children with the express purpose of compelling Mr. Aragao or the U.S.
Government to perform or abstain from any action as a condition of release; (5) Petitioner admits
involvement in the offense, and characterizes it now as unacceptable, serious, and against the
laws of the State of Florida; (6) the actions of Petitioner and his Co-Defendants constituted an
intrastate kidnapping and is already covered by a Florida statute; (7) that a person must be
transported across state lines to bring federal prosecution for kidnapping and that therefore the
crime was not federal ‘hostage-taking’; (8) the holding in Bond is substantive, not procedural,
and is therefore retroactive on collateral review because the new rule from Bond restricts the
3
scope of punishable conduct covered by federal statutes implemented through treaties; (9)
although the crime was violent, it did not incur death, nor could the actions of Petitioner be
construed as international terrorism and since the Second Circuit has held that the Hostage
Taking Act applies to international terrorism, Petitioner’s federal conviction is invalid due to the
decision in Bond, 134 S. Ct. 2077; (10) the gate-keeping provision of 28 U.S.C. § 2255 prevents
Petitioner from bringing a second or successive § 2255 action, and he has already filed a §2255
petition, which has been denied as untimely and the change or clarification of law, although
substantive, is not constitutional; (11) The Antiterrorism and Effective Death Penalty Act does
not normally provide for second or successive § 2255 motions based on new judicial
interpretations of statutes, however, the Petitioner meets the In Re Jones test allowing collateral
attack through a § 2241 motion; (12) Petitioner has therefore shown a fundamental error to his
case and the Federal Government overreached by using an international treaty to prosecute a
purely local crime traditionally under State jurisdiction.
After considering the foregoing, the Magistrate Judge recommends that Petitioner’s §
2241 Petition be given summary dismissal.
28 U.S.C. § 2241 is narrowly applied, whether for state or federal prisoners, to those
prisoners and pre-trial detainees challenging administration of parole, computation of good time,
prison discipline, or imprisonment beyond expiration of their sentence. See Barber v. Rivera,
Civil Action No. 4:11-2579-TMC-TER, 2011 WL 6982074, at *2 (D.S.C. Dec. 13, 2011)
(collecting cases), adopted by 2012 WL 80250 (D.S.C. Jan. 11, 2012). A prisoner who
challenges his federal conviction or sentence, rather than challenging the legality or length of his
detainment or imprisonment, must usually bring his claim under § 2255 and not § 2241.
Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994). Under § 2255 and the holding from In
4
Re Jones, to test the legality of one’s conviction collaterally through a § 2241 petition, one must
show (1) that at the time of conviction, settled law of this circuit and of the Supreme Court
established that petitioner’s conviction was legal; (2) subsequent to the prisoner’s direct appeal
and first § 2255 motion the substantive law changed such that the initial conduct for which the
petitioner was convicted is no longer deemed criminal; and (3) the prisoner cannot satisfy the
gate-keeping provisions preventing the direct filing of a subsequent § 2255 motion because the
new rule is not one of constitutional law. 226 F.3d 328, 333-334 (4th Cir. 2000).
Here, Petitioner fulfills the first and third prongs of the test, as, at the time of conviction,
settled law of the Fourth Circuit and the Supreme Court allowed for Petitioner’s conviction for
hostage taking under 18 U.S.C. § 1203, and conviction under § 1203 is not directly challengeable
through a second § 2255 motion to vacate since it does not involve a constitutional right. (ECF
No. 12, p. 6.) It is the Magistrate Judge’s view that Petitioner fails on the second prong of the
test, as he interprets Bond to strictly invalidate a single conviction under 18 U.S.C. § 229(a)(1)
governing chemical weapons charges and here Petitioner is challenging his conviction for
hostage taking under § 1203. The Magistrate Judge further cites United States v. Shibin, 722 F.3d
233 (4th Cir. 2013) as evidence that the Fourth Circuit has already ruled against Petitioner on the
question of whether Petitioner can bring a jurisdictional challenge against the Hostage Taking
Act in this circuit. The Magistrate Judge recommends dismissal without prejudice and without
requiring Respondent to file an answer or return. The Magistrate Judge also recommends that the
court deny a certificate of appealability.
Petitioner objects, alleging he fulfills the second prong of the In Re Jones test through the
recent holding in Bond. (ECF No. 21.) Petitioner cites in his favor United States v. Toviave, in
which the Sixth Circuit relied on similarities between the prosecution’s overbroad application of
5
chemical warfare statutes to simple assault in Bond to overturn a lower court conviction of
Defendant under forced labor statutes where the individual likely committed child abuse, a state
crime, but did not fulfill other necessary elements, including congressional intent for the forcedlabor statute to abrogate state police power in this instance. 731 F.3d 623 (6th Cir. 2014); Bond,
134 S. Ct. at 2090. Petitioner then turns to the initial treaty upon which § 1203 relies, and
precedent from fellow circuits which state that a purpose of the Hostage Taking Act is
extraterritorial crimes and international terrorism. (ECF No. 21 at 6 (citing United States v.
Yunis, 924 F.2d 1086 (D.C. Cir. 1998); United States v. Rodriguez, 587 F.3d 573 (2d Cir.
2009)).) In answer to the Magistrate Judge’s use of Shibin, Petitioner argues that the case can be
distinguished from his own as Shibin is a proper application of § 1203 governing “international
terrorism”, and Petitioner’s own case does not touch upon the jurisdictional challenges raised and
answered in Shibin. (ECF No. 21.) In Shibin, the defendant challenged his personal jurisdiction
on the grounds that he was a forcibly captured foreign national who was known to have
committed piracy and kidnapping of American and German ships and crew off the coast of
Somalia, before being tried in the United States. 733 F.3d at 233. Shibin never touches on the
issues raised in Bond with regard to the breadth of the scope of activity which Congress intends §
1203 to cover. Id. Here, Petitioner is not challenging jurisdiction, but the applicability of the
statute, for which Congress allegedly has only given clear intent to cover international terrorism,
and not his actions, which he describes as the purely intrastate abduction and violence against a
woman and her children. Petitioner is accurate as to the distinction between the two cases and is
accurate as to his point that the Fourth Circuit has yet to address his allegation that § 1203 should
not be read as expansively as to generally apply to “purely local crimes.”1
1
However, the court need not reach this issue, as Petitioner falls within the clear congressional intent of 18 U.S.C. §
1203 as shown in the de novo review of Petitioner’s claim.
6
The end result of these discrepancies, according to Petitioner, is the attachment of federal
crimes, usually brought about by international treaty, to intrastate offenses that should be
adjudicated as such. See Bond, 135 S. Ct. at 2092 (holding the application of state laws
governing simple assault, reckless endangerment, and harassment were more appropriate than
federal chemical weapons statutes formed as a result of international treaty); Toviave 761 F.3d at
623 (holding available state laws governing child abuse were more appropriate than using federal
charges governing forced labor, which is meant to target those who are bringing non-relatives in
from overseas and often involves deprivation of education, false imprisonment, and other aspects
absent in this case); Rodriguez, 587 F.3d at 573 (holding that 18 U.S.C. § 1203 governs hostage
taking as a method of conducting international terrorism and kidnapping of and by foreign
nationals, not street altercations and temporary deprivation of movement).
While the three cases cited above involve greater separation from the congressional intent
of the act and its application than the case before this court, Petitioner has given sufficiently
specific objections against the Magistrate Judge’s determination regarding whether he can fulfill
the second prong of the In Re Jones test to warrant de novo review. Fed. R. Civ. P. 72(b)(3).
Petitioner has also given some evidence that it is possible there is a broader reading to Bond than
a single strictly narrow invalidation of 18 U.S.C. § 229(a)(1) governing chemical weapons for
low-level harassment and assault. See Toviave, 761 F.3d at 627 (“The Supreme Court has
recently reemphasized we should be cautious in inferring Congressional intent to criminalize
activity traditionally regulated by the states.” and citing to Bond, 134 S. Ct. 2077.) Petitioner also
provides sufficiently specific distinctions between his case and Shibin, and protests that the case
does not apply here as jurisdiction of the party is not in question, but the applicability of the law
to the crime committed. (ECF No. 21 at 7.)
7
Petitioner also objects to the Magistrate Judge’s reading of Ferreira as naming Petitioner
as the “ringleader.” (ECF Nos. 12, 21.) Petitioner is accurate here, the ringleader was Ewin
Martinez of the same last name, and while it may not have direct bearing on this Petition, Ewin’s
list of crimes committed during the attack are more extensive and aggravating than Petitioner’s,
and should not be incorrectly attributed to him so as to avoid any potential bias. Ferreira, 275
F.3d at 1024 (naming Martinez as the ringleader and increasing severity of sentence for
enhancing factors including sexual exploitation of the 9-year old victim and additional charges
for possession of child pornography). Therefore, under Rule 72(b)(3) of the Federal Rules of
Civil Procedure, this court must review this case de novo.
III. DE NOVO REVIEW OF § 2241 PETITION
Petitioner has successfully shown both to the Magistrate Judge and this court that he has
fulfilled the first and third prong of the In Re Jones test for determining whether a § 2241 test is
appropriate. 226 F.3d at 328. The test requires that (1) at the time of conviction, settled law
established the legality of his conviction, (2) there has been a subsequent substantive law change
which would make his conduct not criminal under the law with which he was charged, and (3)
the prisoner cannot satisfy the gate-keeping provisions as the change in law is not a
constitutional one. Id. Petitioner has shown (1) that at the time of conviction, settled law of the
Fourth Circuit and of the Supreme Court established the legality of his conviction under 18
U.S.C. § 1203 governing Hostage Taking. Petitioner has also shown, through the failure of his
untimely § 2255 motion, that (3) any future § 2255 motions could not be heard since his first was
denied as untimely and he was denied a certificate of appealability. (ECF Nos. 12, 21.)
In order to prove the second prong, Petitioner must show that the holding in Bond would
make it so that the conduct of which he has been convicted (the attack on Christina Aragao and
8
her children) would no longer be seen as a violation of § 1203. Petitioner is correct that Bond
need not be read so strictly as to exclusively prevent the application of 18 U.S.C. 229(a), which
is meant to target those who store, manufacture, and use chemical weapons, to civil disturbances,
and that it may have narrow implications for federalism and intrusion into the state police power
for those statutes implemented through international treaty and the Necessary and Proper Clause
alone which are later applied to circumstances where no clear intent on the part of Congress
exists. Toviave, 134 S. Ct. at 627 (citing to Bond as emphasizing a caution against inferring
intent to criminalize areas traditionally regulated by states).
Here, there is a clear intent on the part of Congress and case law to apply the Hostage
Taking Act to at least two activities, regardless of if they are intrastate, interstate, or
international. The first, as Petitioner accurately points out, is international terrorism and piracy.
See Shibin, 722 F.3d at 233 (high seas piracy and ship seizure); Yunis, 924 F.2d 1086 (hijacking
an airplane which included American passengers);United States v. Said, 798 F.3d 182 (4th Cir.
2015) (piracy, kidnapping, and ship seizure); United States v. Haipe, 769 F.3d 1189 (D.C. Cir.
2014) (Filipine national taking both Filipine and American citizens hostage in the Philippines);
United States v. Straker, 800 F.3d 570 (D.C. Cir. 2015) (abduction of a naturalized American in
Trinidad for the purpose of ransom). The second, which Petitioner conveniently does not
mention, involves cases where violators or victims are undocumented foreign nationals residing
within the borders of the United States. Rodriguez, 587 F.3d at 579 (citing to numerous cases,
including Petitioner’s own direct appeal to the Eleventh Circuit). Furthermore, Rodriguez clearly
turns on its case being a unique exception to the foreign non-resident national provision due to
the minimal nature of the crime, and does not attempt to abrogate the already clear and narrow
intent of the statute to regulate participation in the terror, ransom, and containment of both
9
American citizens abroad and of foreign nationals within American borders. 587 F.3d at 580 (“A
Hostage Act violation does not require a link to international terrorism.”). Therefore, Petitioner,
who, along with Co-Defendants abducted the family of a foreign national, falls squarely within
the limited clear intent of § 1203 formulated by Congress and decades of precedent, and is not
eligible for relief under the second prong of the In Re Jones test, as any change in or clarification
of law that may be inferred from Bond would in no way lessen Petitioner’s guilt under the
Hostage Taking Act.
IV. CONCLUSION
Based
on
the
aforementioned
reasons,
the
Magistrate
Judge’s
Report
and
Recommendation is ADOPTED, and Petitioner’s Petition for § 2241 relief is DISMISSED
without prejudice.
The law governing certificates of appealability provides that: 28 U.S.C. § 2253(c)(2) A
certificate of appealability may issue… only if the applicant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(3). The certificate of appealability…shall
indicate which specific issue or issues satisfy the showing required by paragraph (2). A prisoner
satisfies this standard by demonstrating that reasonable jurists would find this court’s assessment
of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In
this case, the legal standard for the issuance of a certificate of appealability has not been met.
IT IS SO ORDERED.
United States District Judge
July 26, 2017
Columbia, South Carolina
10
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?