(HC) Queen v. Rios, No. 1:2009cv01224 - Document 22 (E.D. Cal. 2011)
Court Description: ORDER Granting Respondent's Motion To Dismiss The Petition And Dismissing The Petition As Successive Pursuant To 28 U.S.C. 2244(a) (Doc. 1 ), ORDER Directing The Clerk To Close The Action, signed by Magistrate Judge Sheila K. Oberto on 2/3/2011. CASE CLOSED.(Fahrney, E)
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(HC) Queen v. Rios Doc. 22 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 NICHOLAS J. QUEEN, 11 Petitioner, 12 13 14 15 v. H. A. RIOS, JR., Warden, Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01224-SKO-HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION AND DISMISSING THE PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. § 2244(a) (Doc. 1) ORDER DIRECTING THE CLERK TO CLOSE THE ACTION 17 Petitioner is a federal prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the 20 parties have consented to the jurisdiction of the United States 21 Magistrate Judge to conduct all further proceedings in the case, 22 including the entry of final judgment, by manifesting their 23 consent in writings signed by the parties or their 24 representatives and filed by Petitioner on July 23 and 24, 2009, 25 and on behalf of Respondent on June 9, 2010. Pending before the 26 Court is Respondent’s motion to dismiss the petition, filed on 27 November 29, 2010. Petitioner filed opposition to the motion on 28 1 Dockets.Justia.com 1 December 8, 2010; no reply was filed. 2 I. 3 The Court may dismiss a petition for writ of habeas corpus Propriety of a Motion to Dismiss 4 either on its own motion under Habeas Rule 4, pursuant to the 5 respondent's motion to dismiss, or after an answer to the 6 petition has been filed. 7 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 8 (9th Cir. 2001). 9 Advisory Committee Notes to Habeas Rule A district court must award a writ of habeas corpus or issue 10 an order to show cause why it should not be granted unless it 11 appears from the application that the applicant is not entitled 12 thereto. 13 Section 2254 Cases in the United States District Courts (Habeas 14 Rules) is applicable to proceedings brought pursuant to § 2241. 15 Habeas Rule 1(b). 16 answer, motion, or other response,” and thus it authorizes the 17 filing of a motion in lieu of an answer in response to a 18 petition. 19 2004 Amendments. 20 discretion initially to forego an answer in the interest of 21 screening out frivolous applications and eliminating the burden 22 that would be placed on a respondent by ordering an unnecessary 23 answer. 24 upon the Court broad discretion to take “other action the judge 25 may order,” including authorizing a respondent to make a motion 26 to dismiss based upon information furnished by respondent, which 27 may show that a petitioner’s claims suffer a procedural or 28 jurisdictional infirmity, such as res judicata, failure to 28 U.S.C. § 2243. Rule 4 of the Rules Governing Habeas Rule 4 permits the filing of “an Rule 4, Advisory Committee Notes, 1976 Adoption and This gives the Court the flexibility and Advisory Committee Notes, 1976 Adoption. 2 Rule 4 confers 1 2 exhaust state remedies, or absence of custody. Id. The Supreme Court has characterized as erroneous the view 3 that a Rule 12(b)(6) motion is appropriate in a habeas corpus 4 proceeding. 5 434 U.S. 257, 269 n. 14 (1978); but see Lonchar v. Thomas, 517 6 U.S. 314, 325-26 (1996). 7 4, this circuit has held that motions to dismiss are appropriate 8 in cases that proceed pursuant to 28 U.S.C. § 2254 and present 9 procedural issues such as failure to exhaust state remedies and See, Browder v. Director, Ill. Dept. of Corrections, In light of the broad language of Rule 10 procedural default. 11 Cir. 1990); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989). 12 Analogously, a motion to dismiss is appropriate in the present 13 proceeding brought pursuant to § 2241 because information 14 concerning other District Courts’ proceedings will be considered 15 to determine the propriety of the petition. 16 17 O’Bremski v. Maas, 915 F.2d 418, 420 (9th Accordingly, the Court will proceed pursuant to Rule 4 to consider the Respondent’s motion to dismiss. 18 II. 19 At the time the petition was filed, Petitioner was Background 20 incarcerated in the United States Penitentiary at Atwater, 21 California (USP Atwater); he was later moved to the Federal 22 Correctional Institution at Bennettsville, South Carolina (FCI 23 Bennettsville). 24 USP Atwater, H. A. Rios, Jr., is the proper respondent for the 25 purpose of the motion to dismiss, and Respondent does not contest 26 venue. 27 28 (Pet. 1.) Respondent concurs that the warden of (Mot. 2:1-24.) Petitioner was convicted of robbery in the United States District Court of Maryland, Northern Division, and he was 3 1 previously convicted of criminal offenses in state court. 2 2.) 3 his federal sentence is being executed. 4 he began serving his federal sentence, was transferred to state 5 custody, and was thereafter returned to federal custody to 6 complete service of the federal sentence. 7 that the marshals erred in returning Petitioner to federal 8 custody, and because Petitioner was subjected to serving a 9 sentence in a piecemeal fashion, Petitioner is entitled to 10 11 (Pet. In the petition, Petitioner challenges the manner in which release. Petitioner alleges that Petitioner alleges (Pet. 2-6.) The present petition is not the first petition filed with 12 respect to the judgment pursuant to which Petitioner is detained. 13 The Court may take judicial notice of court records. 14 Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 15 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 16 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 17 The Court will take judicial notice of the docket and documents 18 filed in another federal court action that are pertinent to this 19 proceeding. 20 Fed. R. The Court takes judicial notice of the docket and docketed 21 orders in Nicholas J. Queen v. Donald Romine, Warden, 3:98-cv- 22 02074-RPC-JVW, a proceeding in the United States District Court, 23 Middle District of Pennsylvania. 24 order of January 21, 2000, denying the petition for writ of 25 habeas corpus is not available in the PACER electronic docket 26 system. 27 from the judgment after an unsuccessful motion for a new trial 28 that was construed as a motion for reconsideration. The full text of the Court’s However, the docket reflects that Petitioner appealed 4 (Docs. 19- 1 21, 23-29.) 2 Petitioner moved in the District Court for relief from the 3 judgment pursuant to Fed. R. Civ. P. 60(b) on November 29, 2001. 4 (Doc. 30.) 5 After the judgment was affirmed on appeal, The documents subject to judicial notice establish that the 6 District Court for the Middle District of Pennsylvania determined 7 the legality of Petitioner’s detention with respect to 8 Petitioner’s claim concerning a right to release based on the 9 piecemeal service of his sentence. In his Rule 60(b) motion in 10 the District Court for the Middle District of Pennsylvania, 11 Petitioner attached portions of the court’s order of January 21, 12 2000, in which the court had denied the petition. 13 10-12.) 14 (Doc. 47, 3.) 15 (Doc. 30, 5, He also described the order in a subsequent motion.1 The portions of the order set forth in Petitioner’s Rule 16 60(b) motion reflect that the District Court concluded that 17 Petitioner’s federal and state sentences were intended to be 18 served concurrently. 19 toward service of his federal sentence from September 30, 1994, 20 the date sentence was imposed, as well as credit on his federal 21 sentence for all time spent in pre-trial detention on state 22 charges, from June 4, 1993, through September 19, 1993. 23 Petitioner had argued in the petition that his return to Maryland 24 state custody on December 16, 1994, was improper because it 25 caused him to serve his federal sentence in a piecemeal fashion, 26 and it warranted immediate release. Petitioner received continuous credit The court concluded that 27 1 28 The Court notes that a subsequent post-judgment motion by Petitioner was the subject of another appeal later filed by Petitioner, and in that proceeding, the Court of Appeals affirmed the judgment. (Doc. 54-2, 1-3.) 5 1 Petitioner was in federal custody via a writ of habeas corpus ad 2 prosequendum when sentenced in federal court; the state retained 3 primary jurisdiction of Petitioner, so his placement in federal 4 prison in October 1994 was erroneous and did not constitute 5 commencement of service of his federal sentence. 6 Petitioner was returned to federal custody, there was no 7 piecemeal service of the federal sentence. 8 47, 3.) 9 10 Therefore, when (Doc. 30, 10-12; doc. III. Successive Petition Because the petition was filed after April 24, 1996, the 11 effective date of the Antiterrorism and Effective Death Penalty 12 Act of 1996 (AEDPA), the AEDPA applies to the petition. 13 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 14 1484, 1499 (9th Cir. 1997). Lindh v. 15 Title 28 U.S.C. § 2244(a) provides: 16 No circuit or 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. 17 18 19 20 In addition, the gate-keeping provisions of the AEDPA place the 21 responsibility on the Court of Appeals to authorize successive 22 petitions concerning state court judgments pursuant to 28 U.S.C. 23 § 2254. 28 U.S.C. § 2244(b). 24 However, the provisions requiring prior appellate permission 25 to proceed with a successive petition pertain expressly to claims 26 presented under § 2254 and contain no reference to petitions 27 filed under § 2241. Thus, the gate-keeping provisions do not 28 6 1 apply to habeas petitions filed under § 2241. 2 225 F.3d 1100, 1111 (9th Cir. 2000). 3 Barapind v. Reno, Nevertheless, § 2244(a) prevents a federal inmate from using 4 § 2241 to call into question the validity of a federal court 5 conviction or sentence that has already been subject to a federal 6 court’s determination of legality, such as when the validity of a 7 conviction or sentence has already been subject to federal 8 collateral review. 9 693, 694 (7th Cir. 1998)); accord, Valona v. United States, 138 10 F.3d 693, 694-95 (7th Cir. 1998) (concluding that §2244(a) bars 11 successive petitions under § 2241 directed to the same issue 12 concerning execution of a sentence); Chambers v. United States, 13 106 F.3d 472, 475 (2d Cir. 1997) (barring as a second § 2241 14 petition a repetitive challenge to application of time credits in 15 the administrative calculation of a federal sentence). 16 statutory restrictions in the AEDPA on successive petitions have 17 been characterized as a modified res judicata rule restraining 18 what in traditional habeas corpus practice was known as “abuse of 19 the writ,” a “complex and evolving body of equitable principles 20 informed and controlled by historical usage, statutory 21 developments, and judicial decisions.” 22 U.S. 651, 664 (1996) (citing McCleskey v. Zant, 499 U.S. 467, 489 23 (1991)). 24 dismissal. 25 Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997). 26 Id. (citing Valona v. United States, 138 F.3d The Felker v. Turpin, 518 The appropriate disposition of a successive petition is Queen v. Miner, 550 F.3d 253, 255 (3d Cir. 2008); Here, Petitioner’s claim of illegal confinement is based on 27 the movement of Petitioner from federal custody to a state 28 institution to serve a state sentence, and the subsequent return 7 1 of Petitioner to federal custody to serve piecemeal the remainder 2 of Petitioner’s federal sentence. 3 claim that was made in the District Court for the Middle District 4 of Pennsylvania, where the court rendered a decision on the 5 legality of the detention. This is essentially the same 6 Therefore, the petition will be dismissed. 7 IV. Disposition 8 Accordingly, it is ORDERED that: 9 1) 10 and the petition is DISMISSED with prejudice as successive; and 11 12 Respondent’s motion to dismiss the petition is GRANTED, 2) The Clerk is DIRECTED to close this action because the dismissal will terminate the action. 13 14 IT IS SO ORDERED. 15 Dated: ie14hj February 3, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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