Opinion
Case No. 04cv-1656WQH (AJB).
February 15, 2006
The matter before the Court is the review of the Report and Recommendation of Magistrate Judge Anthony J. Battaglia, filed on May 31, 2005. (Doc. No. 13.)
I. BACKGROUND
On June 1, 2004, Ambrosio Pineda Duque, a federal prisoner confined at the Federal Correctional Institution at Jessup, Georgia, proceeding pro se, filed a Petition for Writ of Error Coram Nobis pursuant to 28 U.S.C. § 1651 or in the alternate a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Southern District of Georgia. On August 11, 2004, the Southern District of Georgia transferred the Petition to this Court because Petitioner is challenging two California state misdemeanor convictions obtained in the San Diego County Superior Court. Petitioner was convicted for the misdemeanor offense of driving under the influence of alcohol in March 1990, and for the misdemeanor offense of driving on a suspended license in April 1992. (Pet. at 1.) Petitioner did not appeal either conviction. (Pet. at 4.) Petitioner also states that both sentences have expired and that he is no longer in state custody with respect to either conviction. (Pet. at 4.) The Petition alleges that both these convictions are invalid because Petitioner was not advised of his Constitutional right to be represented by counsel. (Pet. at 2.) Petitioner argues that he is entitled to a writ of error coram nobis to invalidate these state convictions pursuant toAlabama v. Shelton, 535 U.S. 654 (2002) which establishes that a defendant may not be sentenced to a term of imprisonment absent provision of counsel and no term of imprisonment may be imposed unless defendant was afforded counsel. Petitioner did not challenge his state convictions until September 10, 2002, when he filed a pro se coram nobis petition in the San Diego Superior Court where it was denied. (Pet. Ex. A, B) The appellate court affirmed by an order filed December 23, 2003. (Pet. Ex. F.) The state supreme court denied review by an order filed February 24, 2004. (Pet. Ex. H.)
On August 25, 2004, this Court issued an Order directing the Clerk of Court to serve a copy of the Petition on the Attorney General of the State of California and directing a response to the Petition. (Doc. No. 32.) The California Attorney General moved to dismiss the Petition. (Doc. Nos. 6-8.) On November 22, 2004, Petitioner filed an Opposition to the Motion to Dismiss. (Doc. No. 11.) The Court referred all matters to the assigned magistrate judge for a Report and Recommendation. On May 31, 2005, Magistrate Judge Anthony J. Battaglia issued a Report and Recommendation ("RR") that recommends granting the California Attorney General's motion to dismiss and dismissing the action in its entirety without prejudice. (Doc. No. 13.) On July 12, 2005, Petitioner filed written objections to the RR. (Doc. No. 16.) Respondents have not filed a reply.
II. STANDARD OF REVIEW
The duties of the district court in connection with a magistrate judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. See Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Petitioner filed objections to the RR but did not make any specific objections to the magistrate's factual findings. Accordingly, this Court reviews the magistrate judge's conclusions of law de novo.
Petitioner does not make any specific factual objections to the magistrate's RR. Petitioner contends that the state court violated Petitioner's right to counsel as per Alabama v. Shelton, 535 U.S. 654 (2002) but this fact was not found to be true/false by the magistrate nor is it of consequence to the determination to deny the Petition. The remainder of Petitioner's RR consists only of legal arguments explaining (1) the de novo standard of review with respect to RRs; (2) that this Court has jurisdiction to grant a writ of error coram nobis because he has exhausted all state remedies; (3) that Petitioner seeks review of the California State Court rulings; (4) that whether or not he is under federal custody has no relevance to the Petition; (5) that Petitioner filed his state court Petition in a timely manner; (6) that the People of the State of California is the proper respondent; and (7) that Petitioner alternately seeks audita querela.
II. DISCUSSION
On May 31, 2005, Magistrate Judge Anthony J. Battaglia issued an RR that recommends granting the California Attorney General's motion to dismiss and dismissing the action in its entirety without prejudice. Having reviewed the Petition for a Writ of Coram Nobis and/or Writ of Habeas Corpus, the California Attorney General's Motion to Dismiss, Petitioner's Opposition to the Motion to Dismiss, the RR, Petitioner's Objections to the RR, and the remaining record, the Court will adopt the RR. The Court incorporates by reference the factual and procedural background set forth in the RR.
A. Petitioner is not Entitled to Coram Nobis Relief in this Court with Respect to His State Convictions
Petitioner seeks coram nobis relief in this Court to vacate his two expired state convictions. "The writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody." Estate of McKinney By and Through McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995). Coram nobis relief is not available in federal court to challenge a state conviction; a writ of error coram nobis may only be brought in the sentencing court. United States v. Monreal, 301 F.3d 1127, 1131 (9th Cir. 2002); see also Siegel v. McFadden, 2005 WL 3021496, 1 n. 1 (D. Ariz. 2005); Theriault v. State of Missippi, 390 F.2d 657 (5th Cir. 1968) (per curiam) (holding that coram nobis is not available in federal court as a means of attack on a state criminal judgment). A petition for a writ of error coram nobis can only issue in the aid of the jurisdiction of the court where the conviction was had. Madigan v. Wells, 224 F.2d 577, 578 (9th Cir. 1955). Here, Petitioner is attacking two California state court judgments and not a judgment of the United States district court. (Pet. at 1-2; Pet. at 8; Pet.'s Objections to the RR at 1.)
Petitioner states that what he is seeking is, "the review in this Court on the `rulings' made by the State Court of California that denied petitioner's writ of coram nobis under All Writs Act, 28 U.S.C. § 1651(a). He in no manner is asking this Court to examine whether coram nobis is available to challenge the enhancements of petitioner's actual federal sentence by the use of state convictions. That challenge is for another day and for another court." (Pet.'s Objections to the RR at 3.) (Footnote added.)
The RR includes analysis on the availability of coram nobis relief with respect to Petitioner's enhanced federal sentence. However, as noted above, Petitioner specifically states that he is not seeking coram nobis relief with respect to the enhancement of Petitioner's federal sentence and therefore does not assert any arguments in that regard. (See Pet. Opp. at 2; Pet's Objections to RR at 3.) Regardless, coram nobis relief is only available when a more usual remedy is not available. Estate of McKinney, 71 F.3d at 781-82. The appropriate remedy for a motion to vacate or correct a federal sentence is 28 U.S.C. § 2255. See Monreal, 301 F.3d at 1132.
The Court lacks jurisdiction to grant a writ of error coram nobis to vacate Petitioner's state convictions. Accordingly, to the extent that it is brought as a coram nobis petition to Petitioner's state convictions, the Court will deny the petition. B. Petitioner is not Entitled to Habeas Relief Pursuant to 28 U.S.C. § 2241
Petitioner alternately seeks habeas corpus relief pursuant to 28 U.S.C. § 2241. (Pet. at 1.) The Petition names the People of the State of California and the Warden of the Federal Correctional Institution at Jessup, Georgia as Respondents. The Attorney General of California has moved to dismiss the People of the State of California as a Respondent because Petitioner is no longer in state custody and the State of California no longer has control over Petitioner.
Petitioner contends that "[t]he People of the State of California never made a claim during the proceeding held in the state courts that it was not the Respondent . . . Consequently, the People of the State of California . . . should continue being the [same] Respondent for purpose of this case." (Pet. Objections to RR at 8.) The RR correctly states that there is no basis for the People of the State of California to be named as a Respondent in this action. The federal habeas statute provides that the proper respondent is the person who has immediate custody over the petitioner with the ability to bring the petitioner before the habeas court. Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Ninth Circuit holds "that a petitioner may not seek [a writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The actual person who is [the] custodian [of the petitioner] must be the respondent." Ashley v. Washington, 394 F. 2d 125, 126 (9th Cir. 1968), abrogated on other grounds Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). Petitioner is currently a federal prisoner confined at the Federal Correctional Institution at Jessup, Georgia and is not in custody of the State of California. Petitioner admits that he is no longer in custody with respect to his state convictions. (Pet.'s Opp. at 2-3.) Therefore, the People of the State of California is not a proper respondent in this Petition.
Petitioner also names as Respondent the Warden of the Federal Correctional Institution in Jessup, Georgia. The Warden of the Federal Correctional Institution in Jessup, Georgia is properly named as Respondent because he is the custodian of Petitioner with the ability to bring Petitioner before the habeas court. However, a district court lacks jurisdiction to consider a § 2241 petition if the custodian is outside the district; the court must have personal jurisdiction over the custodian in order to enforce its orders.Dunne v. Henman, 875 F.2d 244, 248 (9th Cir. 1989). This Court lacks jurisdiction to consider Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 because the Warden of the Federal Correctional Institution in Jessup, Georgia, is not within the Southern District of California.
The only proper Respondent to this action is the warden of the federal institution where Petitioner is confined and therefore this Court lacks jurisdiction over a habeas petition brought pursuant to 28 U.S.C. § 2241. Under the Federal Courts Improvement Act, 28 U.S.C. § 1631, "if a court finds that there is a want of jurisdiction the court shall transfer the action to any other such court in which the action could have been brought `if it is in the interest of justice.'" Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (citing In re McCauley, 814 F.2d 1350, 1351-52 (9th Cir. 1987)).
The Court finds that the interests of justice do not warrant transferring this action back to the Southern District of Georgia where Petitioner's custodian can be found. First, petitioner has clearly indicated that he does not want to present a challenge to his federal sentence. (Pet.'s Opp. at 2; Pet.'s Objections to RR at 3.) Second, it is unlikely that Petitioner could proceed with a claim pursuant to § 2241 in the Southern District of Georgia because 28 U.S.C. § 2255 is generally the "exclusive procedural mechanism by which a federal prisoner may test the legality of detention." Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). A § 2241 will not be entertained unless § 2255 "is inadequate or ineffective to test the legality of his detention," 28 U.S.C. § 2255; Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). Petitioner has not shown that § 2255 is "inadequate." Accordingly, the Court will deny the Petition for habeas relief pursuant to 28 U.S.C. § 2241 for lack of jurisdiction and will grant Respondent's Motion to Dismiss.
C. Petitioner is not Entitled to Habeas Relief Pursuant to 28 U.S.C. § 2254
Respondent contends that Petitioner's writ of habeas corpus pursuant to 28 U.S.C. § 2254 must be denied because Petitioner is not in state custody. (Resp. Motion to Dismiss at 3.) Petitioner does not seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Pet. Opp. at 2.) However, pro se pleadings are to be liberally construed. Resnick, 213 F.3d at 447. The RR correctly states that to the extent that the Court must construe the Petition liberally as a habeas action pursuant to § 2254, this Court lacks jurisdiction because Petitioner is not in custody with respect to the state convictions he is challenging. "The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are . . . `in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Petitioner is no longer in actual custody under the state convictions that he is challenging nor does Petitioner allege that he was in constructive custody at the time. Accordingly, this Court does not have the requisite jurisdiction to entertain a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Respondent further contends that the Petition must be denied because (1) the Petition is barred by the statute of limitations under 28 U.S.C. § 2244(d); and (2) Petitioner procedurally defaulted his claims by filing an untimely habeas petition in state court. (Resp. Motion to Dismiss at 1, 4.) Because this Court lacks jurisdiction over the petition, the Court need not determine whether the petition would be barred by the one-year statute of limitations and/or whether habeas relief would be unavailable with respect to Petitioner's claims because they are procedurally defaulted. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (stating that federal courts lack jurisdiction to render advisory opinions regarding matters not properly before the court). The Court will grant the Respondent's Motion to Dismiss the Petition for lack of jurisdiction.
D. Petitioner is not Entitled to Audita Querela Relief
Petitioner requests audita querela relief for the first time in his Objections to the RR. Arguments raised for the first time in an objection to a magistrate's RR are traditionally barred absent exceptional circumstances or a convincing explanation for the failure to present them to the magistrate in the first instance. See Greenhow v. Secretary of Health Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (holding that irreconcilable conflict between panel decisions must be resolved by an en banc court). Petitioner has not presented any exceptional circumstances or convincing arguments to justify his failure to present this issue before the magistrate in the first instance. Therefore, whether Petitioner is entitled to audita querela relief need not be considered by this Court.
However, even assuming arguendo that Petitioner could present exceptional circumstances or convincing arguments to justify his failure to seek audita querela relief before the Magistrate in the first instance, the Court finds that Petitioner is not entitled to audita querela relief. Audita querela relief is not available in federal court to challenge the validity of a state conviction. See Lapin v. Shulton, Inc., 333 F.2d 169 (9th Cir. 1964), Quintana v. Nickolopoulos, 768 F. Supp. 118, 120 (D.C.N.J. 1991); see also United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001) ("[T]he common law writs, such as coram nobis and audita querela, are available to `fill the interstices of the federal postconviction remedial framework.'" (quoting Doe v. INS, 120 F.3d 200, 203 (9th Cir. 1997) (emphasis added)). Accordingly, the Court will deny Petitioner's request for audita querela relief.
IV. CONCLUSION
After reviewing the entire record, the Court finds that Petitioner has not made a showing that he is entitled to relief under coram nobis, 28 U.S.C. § 2241, 28 U.S.C. § 2254, or audita querela in this Court. Accordingly, IT IS HEREBY ORDERED that the Court (1) ADOPTS the Report and Recommendation (Doc. No. 13); (2) GRANTS Respondent's Motion to Dismiss (Doc. No. 6-8); (3) DENIES Petitioner's request for audita querela relief; and (4) DISMISSES the petition in it's entirety. The Clerk of the Court is directed to enter Judgment in accordance with this Order.
IT IS SO ORDERED.