Opinion
9:02-CV-1255, (DNH)(GLS)
September 22, 2003
JEAN CLAUDE SIMON, Ray Brook, NY, for Petitioner, Pro Se
HON. GLENN T. SUDDABY, CHARLES E. ROBERTS, Syracuse, NY, for the Respondent
REPORT-RECOMMENDATION AND ORDER
This matter has been referred for Report-Recommendation by the Hon. David N. Hurd, U.S. District Court Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
I. Background
On December 11, 1997, Jean Claude Simon was convicted in the Southern District of Florida of illegally re-entering the United States following his removal, in violation of 8 U.S.C. § 1326 ( Pet. at ¶ 4). Simon claims he was thereafter sentenced by United States District Judge Shelby Highsmith to a term of imprisonment of eighty-four months ( Id. at ¶ 3). Simon's conviction and sentence were affirmed on appeal. United States v. Simon, 168 F.3d 1271 (11th Cir. 1999).
Although Simon claims to have been sentenced by Judge Highsmith ( Pet. at ¶ 3), the Eleventh Circuit indicates that Simon was convicted before United States District Judge Stanley Marcus. Simon, 168 F.3d at 1271.
According to Simon, he thereafter filed a motion to correct his sentence pursuant to Fed.R.Crim.P. 35(a), however, that motion was denied ( Dkt. No. 10 at (unnumbered) P. 2).
Simon has never filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. See e.g., Dkt. No. 9 at PA, N. 1.
Simon filed his habeas corpus petition pursuant to 28 U.S.C. § 2241 in this District on October 2, 2002 ( Dkt. No. 1). In support of his contention that his sentence must be modified, Simon claims: i) his sentence was imposed in violation of Article 15 of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (Dec. 16, 1966) ("ICCPR"); and, ii) the district court's imposition of a 16-level enhancement to his base offense level pursuant to U.S.S.G. § 2L1.2(b)(1) constitutes a violation of his rights under the Eighth Amendment to the United States Constitution ( Pet. at ¶ 7).
On December 16, 2002, the Office of the United States Attorney, acting on respondent's behalf, filed a notice of motion to dismiss ( Dkt. No. 7), a "declaration" of Charles E. Roberts, Esq. ( Dkt. No. 8), and a memorandum of law in support of the motion to dismiss ( Dkt. No. 9). In his motion, respondent claims that the petition should be dismissed because: i) the present application is, in reality, a motion to vacate pursuant to § 2255 that was improperly commenced by Simon in this District; ii) the ICCPR is not self-executing, and therefore, Simon cannot properly rely upon that treaty as a basis for relief in this action; iii) this Court lacks jurisdiction over Simon's Eighth Amendment claim because such a claim cannot be asserted in an action brought pursuant to § 2241; and, iv) the petition is time-barred ( Dkt. No. 9 at PP. 2-7). Simon filed a response in opposition to the respondent's motion to dismiss in which he alleges that this action was timely commenced and properly brought pursuant to 28 U.S.C. § 2241 ( Dkt. No. 10).
Roberts' "declaration" simply states that "[u]pon information and belief, the facts set forth in the memorandum of law submitted herewith are true and correct and are hereby adopted and incorporated herein by defendant [sic] as if set forth at length in this declaration." See declaration of Charles E. Roberts, Esq. (12/16/02) at ¶ 3.
For the reasons that follow, this court concludes that the petition is, in reality, a motion brought under 28 U.S.C. § 2255, and since such motions must be brought in the sentencing court rather than the district in which the prisoner is confined, the court orders that the petition be transferred to the Southern District of Florida if the District Court adopts this court's recommendation to deny respondent's motion to dismiss.
II. Discussion A. Merits of Motion to Dismiss
In discussing the distinction between petitions brought under 28 U.S.C. § 2241 and 2255, the Second Circuit has noted that while
A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, including such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions. In contrast, § 2255 is generally the proper vehicle for a federal prisoner's challenge to his conviction and sentence, as it encompasses claims that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001) (quoting 28 U.S.C. § 2255) (citations omitted) (emphasis in original).
In his first ground for relief, Simon alleges that on November 1, 2001, the United States Sentencing Guidelines were amended regarding the penalties that can be imposed on a defendant who has been found guilty of unlawfully re-entering the United States ( Pet at ¶ 7(a)). Simon argues that if he were re-sentenced under U.S.S.G. § 2L1.2 as amended, he would only be subject to an eight level enhancement in his base offense level based upon his prior conviction, compared to the sixteen level enhancement imposed by the District Court at his sentencing. Id. Therefore, Simon argues that his sentence, as imposed, violates Article 15 of the ICCPR, which provides that "[i]f, subsequent to the commission of the offense, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby." See 999 U.N.T.S. 171, 177.
As amended on November 1, 2001, § 2L1.2(b)(1) of the Sentencing Guidelines provides that if a defendant has a pre-deportation conviction, the sentencing judge shall "apply the greatest" of several upward adjustments based on the nature of the prior conviction. If the conviction was a felony drug trafficking offense for which the sentence imposed exceeded thirteen months, the sentencing judge must increase the base offense level by sixteen levels. Where the prior conviction was for felony drug trafficking and the sentence imposed was thirteen months or less, the judge must increase the base offense level by twelve levels. Finally, if the conviction was for an aggravated felony, the base offense level must be increased by eight levels. Id.
The second and final ground for relief claims that when the United States Sentencing Commission amended U.S.S.G. § 2L1.2, it acknowledged that the prior version of that Guideline — under which Simon was sentenced — "hand[ed] out disproportionate penalties" ( Pet. at ¶ 7(b)). Simon appears to argue that because the sentence imposed on him was disproportionate to the crime he committed, the sentence constitutes a cruel and unusual punishment. Id.
The above claims clearly challenge the propriety of the sentence imposed on Simon in the Southern District of Florida. Therefore, the petition, although purporting to be filed under § 2241, is more appropriately construed as one which challenges the legality of Simon's sentence, and consequently should have been filed as a motion under § 2255. See Poindexter v. Nash, 333 F.3d 372, 377-78 (2d Cir. 2003); Love v. Menifee, 333 F.3d 69, 72-74 (2d Cir. 2003). Therefore, unless Simon has established that a § 2255 motion would be inadequate or ineffective to test the legality of his detention, this action was not properly brought pursuant to § 2241. B. Inadequacy or Ineffectiveness of § 2255
As amended by the AEDPA, § 2255 provides that:
[a]n application for a writ of a habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255 (emphasis added).
In Triestman v. United States, 124 F.3d 361 (2d Cir. 1997), the Second Circuit held that § 2255 may be inadequate or ineffective in circumstances in which "the petitioner cannot, for whatever reason, utilize § 2255, and in which the failure to allow for collateral review would raise serious constitutional questions." Id. at 377; see also, Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999) (passim); McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).
The Eleventh Circuit, sitting en banc in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
As noted above, Simon has not yet applied for relief under § 2255 in the Southern District of Florida. However, he argues that a § 2255 motion in that District would be inadequate and ineffective because he has already unsuccessfully asserted the arguments raised in his petition in the motion to correct his sentence which he filed in the Southern District of Florida pursuant to Fed.R.Crim.P. 35(a) (Dkt. No. 10 at (unnumbered) P. 2).
The Second Circuit has interpreted § 2255's exception for an "inadequate or ineffective" remedy as an "exception to the general rule that a federal prisoner must use § 2255 instead of seeking a writ of habeas corpus under § 2241." Triestman, 124 F.3d at 373. In interpreting this limited exception, the Poindexter court explained:
In order to fit within this exception authorizing a petition under § 2241 for a claim that is within the substantive scope of § 2255 . . . [t]he application not only must show that relief is procedurally unavailable under § 2255, but also must assert a claim of actual innocence that (a) is "prov[able] . . . on the existing record," and (b) "could not have effectively [been] raised . . . at an earlier time."Poindexter, 333 F.3d at 378.
The Eleventh Circuit has held that the only sentencing claims that "may conceivably be covered by the savings clause [of § 2255] are those based upon a retroactively applicable Supreme Court decision overturning circuit precedent." Wofford, 177 F.3d at 1244-45.
Simon has offered nothing to demonstrate that a motion under § 2255 would be inadequate or ineffective to obtain the relief he seeks. Initially, it is not clear that a § 2255 motion in the Southern District of Florida is "procedurally unavailable" to Simon because he has not yet filed an initial § 2255 motion in that court. Additionally, Simon does not allege in his petition that he is actually innocent of the crime of which he was convicted. See Pet. Therefore, Simon has failed to carry his burden of establishing that an application under § 2255 would be inadequate or ineffective to test the legality of his detention, and this matter is not properly brought under § 2241. C. Transfer of Action to Southern District of Florida
The burden of demonstrating that the remedy afforded under § 2255 is inadequate or ineffective rests with the petitioner. Blackmon v. Nash, 01-CV-282, 2003 WL 133273, at *1 (N.D.N.Y. Jan. 7, 2003) (Kahn, J.).
The final issue that must be resolved is whether to dismiss this action or transfer this matter to the District in which Simon was sentenced.
Both of the grounds asserted in the petition are based upon an amendment to the Sentencing Guidelines which occurred on November 1, 2001. Since this action is properly viewed as one brought under 28 U.S.C. § 2255, and such actions are subject to a one-year time limitation, see 28 U.S.C. § 2255, ¶ 6; Clay v. United States, 537 U.S. 522, ___, 123 S.Ct. 1072, 1075 (2003), if Simon were required to commence a new action pursuant to § 2255 in the Southern District of Florida relating to the claims asserted in the present petition, that action would appear to be time-barred. Therefore, the court recommends that respondent's motion to dismiss this action be denied.
However, a collateral attack upon a sentence must be brought through § 2255 in the federal district court that sentenced the petitioner. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 890 N.17 (2d Cir. 1996) ("Section 2255 is essentially a venue provision, requiring a motion to the sentencing court rather than an application to the district court in the district in which the prisoner is confined") (citation omitted); Birdsell v. Alabama, 834 F.2d 920, 922 (11th Cir.1987). Since Simon's petition clearly challenges the legality of his sentence, this court recommends the petition be transferred to the Southern District of Florida. See 28 U.S.C. § 1631; Baldwin v. Wiley, 9:99-CV-336 (DM. No. 35) (N.D.N.Y. Feb. 1, 2002) (Mordue, J.).
Although respondent alternatively argues that the petition was untimely filed ( see Dkt. No. 9 at P. 6), the merits of such an argument are properly considered by the transferee court.
WHEREFORE, it is hereby
RECOMMENDED, that the respondent's motion to dismiss Simon's petition (Dkt. No. 7) be DENIED; and it is further ORDERED, that if the District Court adopts this Report-Recommendation that this matter be TRANSFERRED to the Southern District of Florida for all subsequent proceedings; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on the parties by regular mail.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.
IT IS SO ORDERED.