Belt v. Warden at USP Hazelton
Filing
26
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S 17 REPORT AND RECOMMENDATION AND OVERRULING PETITIONER'S OBJECTIONS ORDER. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket o f this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 6/15/15. (copy to Pro Se Petitioner via CM/rrr)(lmm) (Additional attachment(s) added on 6/15/2015: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TARIQ BELT,
Petitioner,
v.
Civil Action No. 5:14CV156
(STAMP)
WARDEN, U.S.P. HAZELTON,
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION AND
OVERRULING PETITIONER’S OBJECTIONS
I.
Procedural History
The petitioner filed a thirteen-page handwritten letter titled
“Notice” which was preliminary docketed as a pro se1 petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
This
petition was referred to United States Magistrate Judge James E.
Seibert for initial review and report and recommendation pursuant
to Local Rule of Prisoner Litigation Procedure 2.
The petitioner was sent notices of deficiency along with
packets for both a Bivens2 claim and a § 2241 claim (as it was
unclear from the “notice” whether it truly was a § 2241 action),
and a letter explaining the options.
The petitioner did not file
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
2
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971).
anything on those forms but rather filed another letter reiterating
his claims and complaining that his claim had been sent to a pro se
law clerk (“PSLC”) instead of a judge.
an
amendment
without
leave
of
The petitioner then filed
court,
criticizing
the
characterization of his claims as either Bivens or § 2241 claims
and requesting emergency consideration of his claims. A show cause
order was then entered as the petitioner had not filed on approved
forms nor provided a filing fee or in forma pauperis (“IFP”)3
documents.
After
no
response,
an
order
of
dismissal
was
entered.
However, it was later found that the petitioner’s address had not
been updated.
The case was reopened and the show cause order was
forwarded to the petitioner’s new address.
The petitioner then
filed an eight-page response in which he reiterated his claims but
still failed to file his petition with the proper forms or pay a
filing fee.
The magistrate judge then entered a report and
recommendation recommending that the petition be dismissed.
The
petitioner timely filed objections.
II.
Facts
After entering a guilty plea, the petitioner was convicted in
the United States District Court for the District of Maryland of
conspiracy to distribute and possess with intent to distribute
3
In forma pauperis refers to the filing status as a “pauper,”
or “indigent who is permitted to disregard filing fees and court
costs.” Black’s Law Dictionary 899 (10th ed. 2014).
2
cocaine base and cocaine in violation of 21 U.S.C. § 846.
He was
sentenced to 212 months of imprisonment to be followed by five
years of supervised release. The petitioner did not file an appeal
but did file three 28 U.S.C. § 2255 petitions, all of which were
denied.
The petitioner has also filed other post-conviction
challenges to his sentence. While awaiting sentencing on the above
conviction, the petitioner was indicted on additional charges.
He
pled guilty to possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841, and was sentenced to one year of
imprisonment to be served consecutively to the 212 months, and one
year of supervised release to be served concurrently with the five
years of supervised release.
The petitioner appealed and that
judgment was affirmed by the United States Court of Appeals for the
Fourth Circuit.
The petitioner filed a petition pursuant to 28
U.S.C. § 2255 and motion to reduce sentence in that case, the
§ 2255 was denied and the motion to reduce sentence is still
pending.
In his petition, the petitioner argues that violations of the
Privacy Act have occurred at United States Penitentiary (“USP”)
Hazelton. The petitioner asserts that he was placed in the Secured
Housing Unit (“SHU”) without being provided the proper records
under the Privacy Act. The petitioner requests emergency relief so
that he will be sent back to the general population, among other
things.
He appears to also argue that his due process rights have
3
been infringed upon because of the procedure used by USP Hazelton
and its employees.
The magistrate judge found that the petition should be denied
as
all
of
the
petitioner’s
filings
are
unintelligible
and
incoherent and thus the Court lacks authority to grant any relief.
In the alternative, the magistrate judge found that the case should
still be dismissed as the petitioner has failed to (1) file his
claims on court-approved forms, (2) file any IFP documents or
filing fees, or (3) offer any reason for not doing so.
In his objections, the petitioner asserts that his claim is
one for a violation of the Privacy Act.
The petitioner seems to
argue that at some point during the investigation of his Maryland
conviction, although it is not clear which one, the government
forged or provided incomplete records which he is now challenging.
The petitioner also asserts that his previous filings may contain
some misspellings because they were filed under duress and thus his
case should not be dismissed for those mistakes.
Also, the
petitioner contends that because this Court knows the law it should
know that as a “natural individual” the petitioner is entitled to
free access to judicial tribunals and public offices.
Additionally, the petitioner asserts that this Court may not
rely on any of the records from the government because they are
incorrect and thus this Court must proceed as if those records are
inaccurate.
The petitioner also seems to make an ineffective
4
assistance of counsel claim because he believes his counsel should
have made an argument as to venue.
Finally, the petitioner
reiterates that his due process rights have been infringed by the
procedures implemented at USP Hazelton.
For the reasons that follow, this Court finds that the
petition should be dismissed.
III.
Applicable Law
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a
de
novo
review
of
any
portion
of
the
magistrate
recommendation to which objection is timely made.
judge’s
Because the
petitioner filed objections to the report and recommendation, the
magistrate judge’s recommendation will be reviewed de novo.
IV.
A.
Discussion
Petitioner’s Filings
This Court first finds that the petitioner’s filings are
somewhat incoherent and that it is difficult to decipher what the
petitioner’s exact arguments are at this time. Although this Court
must construe pro se
petitions liberally, this Court is not
required to make the petitioner’s arguments for him and the
petitioner must provide at least some recognizable legal theories.
Haines v. Kerner, 404 U.S. 519, 520 (1972); Minone v. McGrath, 435
F. Supp. 2d 266 (S.D.N.Y. 2006).
As the magistrate judge noted, a
review of the petitioner’s filings reveals unintelligible claims
and cryptic assertions that the petitioner is entitled to relief.
5
As reviewed above, this Court is only able to decipher a few of the
petitioner’s claims, which this Court is still unsure is exactly
what the petitioner is meaning to assert.
Thus, this Court agrees
that based on the filings, the Court lacks authority to grant the
relief requested by the petitioner.
This Court also finds, in the alternative, that the petitioner
has failed to follow this Court’s procedural requirements even
though he was provided instructions, court-approved forms, and IFP
documents.
The petitioner’s only offerings in his objections is
that this Court should know the law and that the petitioner’s
filings may contain some misspellings. However, the petitioner has
been provided guidance on how to file his claim in order to avoid
dismissal and has failed to take advantage of such guidance to his
own peril.
B.
Petitioner’s Privacy Act and Possible Ineffective Assistance
of Counsel
Finally, this Court will review what claims it believes have
been forwarded by the petitioner.
Although again, this Court
believes that the filings themselves do not afford this Court
sufficient means by which to actually consider the petitioner’s
claims fully.
1.
Claims Regarding Conduct Before Petitioner Was Convicted
The
petitioner’s
claims
regarding
the
Privacy
Act
and
ineffective assistance of counsel appear to seek relief more akin
to a § 2255 rather than a § 2241.
6
As the petitioner has already
filed numerous § 2255 petitions, he must now show that he is
entitled to relief under § 2241.
A federal prisoner may seek relief pursuant to 28 U.S.C.
§ 2241 when a petition pursuant to § 2255 is “inadequate or
ineffective to test the legality of his detention.”
§ 2255; In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
28 U.S.C.
However,
the remedy afforded by § 2255 is not rendered inadequate or
ineffective merely because relief has become unavailable under
§ 2255 because of a limitation bar, the prohibition against
successive petitions, or a procedural bar due to failure to raise
the issue on direct appeal.
In re Vial, 115 F.3d at 1194 n.5
(citing Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988)).
Rather, § 2255 is inadequate and ineffective to test the legality
of a conviction when:
(1) at the time of the conviction, settled law of this
circuit or the Supreme Court established the legality of
the conviction; (2) subsequent to the prisoner’s direct
appeal and first § 2255 motion, the substantive law
changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal; and (3) the
prisoner cannot satisfy the gate-keeping provisions of
§ 2255 because the new rule is not one of constitutional
law.
Jones, 226 F.3d 328.
In this case, the petitioner has failed to establish the
elements required by Jones.
The criminal statutes under which the
petitioner was convicted are still valid criminal offenses and thus
the “conduct of which the [petitioner] was convicted” is still
7
deemed to be criminal.
Id.
Accordingly, the petitioner’s claims,
even if this Court were to consider their merit, would be found to
be lacking.
2.
Claims Regarding Conduct Post-Conviction
Insofar
as
the
petitioner
has
asserted
claims
that
USP
Hazelton employees’ handling of records regarding his placement in
the SHU violated his rights under the Privacy Act, those claims are
also without merit.
Section 552a(j) of the Privacy Act authorizes
the heads of law enforcement agencies to exempt certain types of
records from specified provisions of the Act.
The Department of
Justice has properly exempted BOP’s Inmate Central Record System
from the Privacy Act’s amendment requirements.
See 28 C.F.R.
§ 16.97 and White v. United States Probation Office, 148 F.3d 1124,
1125 (D.C.Cir. 1998) (per curiam) and Brown v. Bureau of Prisons,
498 F. Supp. 2d 298 (D.D.C. 2007) (“Because BOP regulations exempt
the Inmate Central Records System from subsection (d) of the
Privacy Act, Plaintiff cannot obtain the relief he seeks, that is,
amendment of the PSR itself.”).
Thus, as far as this Court
understands what the petitioner is asserting, the petitioner’s
claims would be exempt and thus are without merit.
V.
Having
reviewed
the
Conclusion
magistrate
judge’s
report
and
recommendation de novo, this Court hereby AFFIRMS and ADOPTS the
report and recommendation in its entirety and the petitioner’s
8
objections are hereby OVERRULED.
Accordingly, the petitioner’s
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is
DENIED and DISMISSED WITH PREJUDICE. It is ORDERED that this civil
action be DISMISSED and STRICKEN from the active docket of this
Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit,
he is ADVISED that he must file a notice of appeal with the Clerk
of this Court within sixty days after the date of the entry of this
judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:
June 15, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
9
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?