Opinion
9:00-CV-1931 (LEK)(GLS)
August 26, 2003
CHERYL J. STURM, ESQ., LAW OFFICE OF CHERYL STURM, Chadds Ford, PA, FOR THE PETITIONER.
CHARLES E. ROBERTS, ESQ. Assistant U.S. Attorney, HON. GLENN T. SUDDABY, United States Attorney, Syracuse, New York, FOR THE RESPONDENT.
REPORT-RECOMMENDATION and ORDER
Presently before the court is a motion to dismiss the petition, which implicates relief that is dispositive in nature, as well as a cross-motion to strike, which seeks non-dispositive relief. The motion to dismiss has been referred for Report-Recommendation by the Honorable Lawrence E. Kahn, U.S. District Court, pursuant to 28 U.S.C. § 636(b)(1)(B) and N.D.N.Y.L.R. 72.4. Petitioner's cross-motion to strike is before this court for determination pursuant to 28 U.S.C. § 636(b)(1)(A).
Petitioner Thomas Tarascio, an inmate at the RayBrook Federal Correctional Institution as a result of a drug conspiracy conviction obtained in the federal district court for the District of Connecticut, has filed a habeas petition pursuant to 28 U.S.C. § 2241 challenging the lawfulness of his incarceration. In opposing Tarascio's petition, respondent John Nash has moved to dismiss this action. Dkt. No. 9-11. Tarascio has filed a "Traverse" in further support of his petition, and a cross-motion to strike respondent's motion ( Dkt. No. 13).
Tarascio's habeas petition was filed pursuant to 28 U.S.C. § 2241 and 2243 in this District, as the place of his incarceration, rather than as a motion filed under 28 U.S.C. § 2255 in the District in which his conviction was entered. Pet at P. 1.
For the reasons that follow, this court concludes that it lacks subject matter jurisdiction over this proceeding. Additionally, since this matter is, in reality, a second motion brought by Tarascio under 28 U.S.C. § 2255, and a prior motion by him under that section was denied on the merits by then-United States District Judge Jose A. Cabranes of the District of Connecticut, the court recommends that the petition be transferred to the Second Circuit Court of Appeals to consider whether to grant Tarascio leave to file a second or successive petition under 28 U.S.C. § 2255.
I. Background
According to Tarascio, an indictment filed in the District of Connecticut charged him with, inter alia, conspiracy to distribute and possess with intent to distribute, and possessing with intent to distribute, more than 500 grams of cocaine, in violation of 21 U.S.C. § 841 and 846. Pet. at ¶ 3. Tarascio was found guilty by a jury as to those charges, and thereafter sentenced to a term of imprisonment of 264 months, followed by 5 years of supervised release. Pet. at ¶¶ 4-5. Tarascio appealed his conviction and sentence to the Second Circuit and his appeal was affirmed. Pet. at ¶ 8. Following his unsuccessful appeal, Tarascio filed a motion pursuant to 28 U.S.C. § 2255 to set aside, vacate or correct his sentence. However, that motion was denied by then-District Judge Cabranes on April 14, 1993, Tarascio, 15 F.3d at 224, which decision was affirmed on appeal. Id. at 225. II. This Action
Although Tarascio claims that the Second Circuit decided his direct appeal on December 17, 1993 (see Pet. at ¶ 8(c)), that was the date on which the Second Circuit affirmed the denial of Tarascio's initial § 2255 motion. See United States v. Tarascio, 15 F.3d 224 (2d Cir. 1993). The Second Circuit denied Tarascio's direct appeal in a prior, unreported, summary order of that court. Id. at 225.
Tarascio commenced this proceeding on December 18, 2000. Pet. at P. 1. In his petition, Tarascio asserts two separate grounds for relief, arguing that: i) the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) renders his sentence illegal; and, ii) his conviction and sentence violates several of his rights under the International Covenant on Civil and Political Rights (12/16/96), 999 U.N.T.S. 171, 6 I.L.M. 368 (1967) ("ICCPR"). Pet. at P.2; Dkt. No. 2 at PP. 5-17.
Respondent filed a motion seeking dismissal of the petition as a matter of law ( Dkt. Nos. 9-11). In his motion, respondent maintains, inter alia, that this court lacks jurisdiction over the petition, arguing that because Tarascio's petition is, in reality, a second § 2255 motion, the petition is subject to dismissal because "the only court with jurisdiction to hear it is the court of appeals." Dkt. No. 11 at P. 3. Tarascio filed a cross-motion to strike respondent's motion to dismiss as procedurally defective ( Dkt. No. 13). That document also contains additional arguments in support of his petition. Id. III. Discussion A. Cross-Motion To Strike
Respondent's original motion papers have since been supplemented by respondent. See Dkt. No. 15.
Since Tarascio argues in his cross-motion that respondent cannot properly move to dismiss his petition ( Dkt. No. 13 at PP. 1-2), the court initially considers whether respondent's dismissal motion is properly before this court for consideration.
Unlike habeas petitions brought under 28 U.S.C. § 2254 and 2255, there are no explicit rules that govern habeas petitions brought under 28 U.S.C. § 2241. However, Rule 1(b) of the Rules Governing § 2254 cases provides that "[i]n applications for habeas corpus in cases not covered by [certain petitions under 28 U.S.C. § 2254], these rules may be applied at the discretion of the United States district court." Moreover, Rule 11 of the Rules Governing § 2254 cases provides that "[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules." See also, N.D.N.Y.L.R. 72.4(a) (providing that "Petitions under 28 U.S.C. § 2241 . . . shall be filed pursuant to the Rules Governing § 2254 cases in the United States District Courts and the Rules Governing § 2255 proceedings in the United States District Courts").
The rules which govern §§ 2254 and 2255 proceedings expressly apply only to petitions filed under those provisions and do not directly govern § 2241 petitions. See Rules Governing § 2254 cases in the United States District Courts, foll. 28 U.S.C. § 2254 Rule 1(a); Rules Governing § 2255 proceedings in the United States District Courts, foll. 28 U.S.C. § 2255, Rule 1.
The Federal Rules of Civil Procedure similarly provide that they are "applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions." Fed.R.Civ.P. 81(a)(2).
Generally, a motion seeking to dismiss a habeas corpus petition is inappropriate because consideration of matters outside the pleadings would typically be necessary in order to address such a motion. See Pizza v. Nash, 2001 WL 1862808, at *1 (N.D.N.Y. Oct. 11, 2001) (Sharpe, M.J.), adopted Pizza v. Nash, No. 9:01-CV-757, slip op. (N.D.N.Y. Jan. 29, 2002) (Hurd, J.). In this case, neither respondent's notice of motion ( Dkt. No. 9) nor the supporting declaration of his counsel ( Dkt. No. 10) informs the court as to the basis upon which dismissal of Tarascio's petition is sought. However, the memorandum of law submitted in support of his motion appears to argue, in part, that the motion is premised upon a claimed lack of subject matter jurisdiction — a basis upon which a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) would ordinarily be based.
See Dkt. No. 11 at P. 3.
The Second Circuit has specifically held that in situations where the court's subject matter jurisdiction over an action is challenged, a motion to dismiss is an appropriate response to a petition brought pursuant to § 2241. See Poindexter v. Nash, 333 F.3d 372, 383 (2d Cir. 2003). Therefore, since respondent's motion alleges, inter alia, that this court lacks subject matter jurisdiction over the petition (Dkt. No. 11 at P. 3), the motion to dismiss was, at least in part, properly filed. Therefore, the court denies Tarascio's cross-motion to strike.
Certain of respondent's arguments are inappropriately raised by him in the context of a motion to dismiss. For example, his claims that Tarascio has procedurally defaulted on both his Apprendi claim (Dkt. No. 11 at P.2), and his claim under the ICCPR (Id. at PP. 3-4) are based upon matters that are not contained within Tarascio's petition. Therefore, those arguments are only properly raised by a respondent through an answer and memorandum of law in opposition to the petition, together with copies of all relevant underlying records. E.g., Pizza, 2001 WL 1862808, at *2.
B. 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).
Although Tarascio's petition asserts in general terms that his "sentence is being executed in violation of the Treaties of the United States" (Pet. at ¶ 9(a)), in his supporting memorandum he has clarified that this ground asserts a violation under the ICCPR (Dkt. No. 2 at PP. 5-7). Tarascio claims that because this aspect of his petition alleges a violation of a treaty, the only proper vehicle by which this claim may be brought to this court is through a petition brought pursuant to § 2241 (Dkt. No. 2 at P. 8). However, the Second Circuit has expressly held that the ICCPR does not afford individuals a private right of action. As the Poindexter court noted in affirming the dismissal of the claims brought by the petitioner in that case under § 2241:
"Articles 1 through 27 of the [ICCPR] [a]re not self-executing, see 138 Cong.Rec. S4784 (daily ed. Apr. 2, 1992), and could not therefore give rise to privately enforceable rights under United States law." De La Rosa v. United States, 32 F.3d 8, 10 n. 1 (1st Cir. 1994); see also, Wesson v. United States Penitentiary, 305 F.3d 343, 348 (5th Cir. 2002) (habeas relief not available for alleged violation of Covenant provisions as to which Congress has not allowed private enforcement), cert. denied, ___ U.S. ___, 123 S.Ct. 1374, 155 L.Ed.2d 212 (2003).Poindexter, 333 F.3d at 379. Thus, in light of Poindexter, it is clear that Tarascio does not have standing to raise any claims under the ICCPR. Moreover, his Apprendi claims squarely challenge the propriety of the sentence imposed on him by Judge Cabranes. Thus, Tarascio's petition, although purporting to be filed under § 2241, is more appropriately construed as one which challenges his conviction and sentence, and consequently, should have been filed as a motion brought under § 2255. See Poindexter, 333 F.3d at 377-78; Love v. Menifee, 333 F.3d 69, 72-74 (2d Cir. 2003). C. Inadequacy or Ineffectiveness of § 2255
Tarascio's petition claims that his conviction and sentence violates Articles 9, 14, and 15 of the ICCPR. See Dkt. No. 2 at P. 6.
The issue of standing "is at heart 'a jurisdictional prerequisite to a federal court's deliberations.'" Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir. 1994) (quoting Hodel v. Irving, 481 U.S. 704, 711 (1987)).
Since Tarascio's Apprendi claim is being asserted by him for the first time in his second collateral challenge to his conviction and sentence, it appears likely that he faces a significant procedural hurdle before it could be considered on the merits. See Forbes v. U.S., 262 F.3d 143, 145 (2d Cir. 2001) (denying application to file second or successive application under § 2255 because "it is clear that Apprendi is not a new rule of constitutional law which has been made retroactive to cases on collateral review by the Supreme Court"). However, since this court finds that it does not have jurisdiction to consider the petition absent the required certification from the Second Circuit, the court does not make any recommendations as to the substance of Tarascio's claims.
"§ 2241 is the substantive provision for the writ of habeas corpus, 28 U.S.C. § 2242 and 2243 set forth the procedure one must follow to bring a petition and to obtain the relief of the writ." Robledo-Gonzales v. Ashcroft, F.3d 2003 WL 21715838, at *3 (7th Cir. July 25, 2003).
In an attempt to avoid a recommendation of dismissal due to lack of subject matter jurisdiction, Tarascio argues that this court should entertain his petition, notwithstanding the fact that it is not brought under § 2255, based upon the express statutory exception which allows a petitioner to challenge a sentence under § 2241(c)(3) when § 2255 does not afford a meaningful remedy. Dkt. No. 2 at PP. 9-11.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 114, § 2255 provides that:
[a]n application for a writ of a habeas corpus in 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). 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 v. United States, 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, it is insufficient simply that relief under § 2255 is unavailable because, for example, a prior motion under § 2255 has been made and a successive motion under that section is disallowed by the court of appeals under the gatekeeping provisions of 28 U.S.C. § 2244 and 2255 . . . or because § 2255 relief is unavailable because the Supreme Court has not made a new rule of constitutional law retroactive to cases on collateral review. . . . The 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 (citations omitted).
With the possible exception of his claim based upon the ICCPR, which the Poindexter court has clearly stated does not give rise to a privately enforceable right, see Poindexter, 333 F.3d at 379, Tarascio has offered nothing to demonstrate that a motion under § 2255 would be inadequate or ineffective to obtain the relief he seeks, other than his inability to meet the AEDPA's gatekeeping requirement regarding second or successive § 2255 motions. Additionally, Tarascio does not allege in his petition that he is actually innocent of the crimes of which he was convicted. See Pet. Therefore, Tarascio 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. D. Transfer of Action to Second Circuit
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.).
Where a district court determines that: i) a petition brought pursuant to § 2241 only raises one or more claims that are properly brought under § 2255; ii) a petitioner has previously filed a § 2255 motion which was denied on the merits; and, iii) the petitioner failed to obtain the authorization from the court of appeals that is required by § 2244(b)(3), the district court is to transfer the motion to the Second Circuit rather than consider the merits of the claims raised in the petition. Poindexter, 333 F.3d at 382 (citations omitted). As that court noted, except in limited circumstances not relevant to this action, "§ 2241 does not give the court authority to entertain under that section an application that is within the scope of Section 2255 and that cannot be entertained without court of appeals authorization." Poindexter, 333 F.3d at 382. The court therefore recommends that respondent's motion to dismiss the petition, based upon lack of subject matter jurisdiction, be granted, and that this matter be transferred to the Second Circuit for the authorization required by 28 U.S.C. § 2244(b)(3). Poindexter, 333 F.3d at 382-83; Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996).
WHEREFORE, it is hereby
RECOMMENDED, that respondent's motion to dismiss Tarascio's petition (DM. No. 9) be GRANTED based solely upon this court's lack of subject matter jurisdiction; and it is further
RECOMMENDED, that if the District Court finds that this court lacks subject matter jurisdiction over this action, this matter be TRANSFERRED to the Second Circuit Court of Appeals to determine whether Tarascio should be granted permission to file a second or successive § 2255 motion pursuant to 28 U.S.C. § 2244(b)(3); and it is further
ORDERED, that Tarascio's cross-motion to strike respondent's motion to dismiss (Dkt. No. 13) is DENIED; and it is further
ORDERED, that the Clerk 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.