Civil Action No. 2:19-1593
Chief Judge Mark R. Hornak
REPORT AND RECOMMENDATION
Pending before the Court is a Petition for a Writ of Habeas Corpus filed by Ronald T. Masko. (ECF No. 1). For the reason set forth below, it is respectfully recommended that the Court dismiss the Petition.
The Court has a pre-service duty to screen and dismiss petitions filed under 28 U.S.C. § 2241 or motions filed under 28 U.S.C. § 2255 when it plainly appears that the petitioner is not entitled to relief. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (which also applies to § 2241 cases); Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts.
Mr. Masko is well known to the Court. He is currently housed in the Allegheny County Jail on a supervised release violation in a matter pending before the Court at 2:18-cr-48, which has not yet been adjudicated to final judgment. On December 11, 2019, he filed the pending Petition for a Writ of Habeas Corpus within which he is challenging the legality of his current detention.
"Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer federal jurisdiction over habeas petitions filed by federal inmates." Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012). Section 2255 permits a federal prisoner to challenge his conviction or sentence "upon the ground that [it] 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[.]" 28 U.S.C. § 2255(a). As the Court recently explained to Mr. Masko in an order dated November 26, 2019, "[§] 2255...governs challenges by a person 'in custody' under a federal sentence. And because any sentence revoking supervised release is treated as a separate judgment, [Mr. Masko] cannot show that he is currently 'in custody under' such a sentence because the Court has not yet revoked his supervised release." ECF No. 67 in 2:18-cr-48 (citing United States v. Colburn, 345 F. App'x 764, 765 (3d Cir. 2009)). Therefore, Mr. Masko cannot challenge the legality of his detention under § 2255.
On rare occasions it is possible for a federal prisoner confined within Third Circuit to attack the validity of a conviction under § 2241. See 28 U.S.C. § 2255(e); In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997); see, e.g., Bruce v. Warden Lewisburg USP, 868 F.3d 170 (3d Cir. 2017).
As for § 2241, it "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Cardona, 681 F.3d at 535; Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005) (defining "execution of" the sentence to mean "'put into effect' or 'carry out.'"). In some limited circumstances a state defendant can challenge the validity of his pretrial detention in a § 2241 habeas petition. Reese v. Warden Philadelphia FDC, 904 F.3d 244, 246 n.2 (3d Cir. 2018) (citing Moore v. DeYoung, 515 F.2d 437, 447 n.12 (3d Cir. 1975)); see, e.g., Breakiron v. Wetzel, No. 2:14-cv-570, 2015 WL 451167, *7 (W.D. Pa. Feb. 3, 2015) (Barry Fischer, J.). However, a federal defendant cannot so utilize § 2241 and must instead seek relief through remedies available to him in his criminal proceeding. See ECF No. 67 in 2:18-cr-48 (citing Reese, 904 F.3d at 246-48 (a federal prisoner awaiting trial and challenging the charges against him and the conduct of law-enforcement officers during arrest and interrogation should seek relief through remedies available within the criminal action, and not a 28 U.S.C. § 2241 habeas petition; likewise, § 2241 is not the proper vehicle for petitioners challenging their detention pending trial, and that the Bail Reform Act of 1984, 18 U.S.C. §§ 3141 to 3150, provides a comprehensive scheme governing pretrial-release decisions); and, In re: Frederick H. Banks, 775 F. App'x 80, 81 (3d Cir. 2019) ("release from detention pending federal charges...may not be obtained through a petition pursuant to § 2241."). Therefore, Mr. Masko cannot challenge the legality of his detention under § 2241.
This means that a federal prisoner confined within the Third Circuit typically may only litigate in a § 2241 habeas proceeding two types of claims. The first type of claim is one that challenges conduct by the Federal Bureau of Prisons (the "BOP") that affects the duration of the prisoner's custody. For example, a prisoner can challenge in a § 2241 habeas proceeding the manner in which the BOP is computing his federal sentence, see, e.g., Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990), or the constitutionality of a BOP disciplinary action that resulted in the loss of good conduct sentencing credits, see, e.g., Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008). The second type of claim is one that challenges BOP conduct that the prisoner contends "conflict[s] with express statements in the applicable sentencing judgment." Cardona, 681 F.3d at 536; McGee v. Martinez, 627 F.3d 933, 935-37 (3d Cir. 2010); Woodall, 432 F.3d at 243. The prisoner must "allege that [the] BOP's conduct was somehow inconsistent with a command or recommendation in the sentencing judgment." Cardona, 681 F.3d at 536-37.
Based upon the forgoing, it is respectfully recommended that the Court dismiss Mr. Masko's Petition for a Writ of Habeas Corpus. To the extent that a certificate of appealability is required, the Court should deny one because jurists of reason would not find debatable the Court's disposition of the Petition for the reasons set forth herein. 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The certificate of appealability requirement applies in a § 2255 proceeding, but not in a § 2241 proceeding filed by a federal prisoner. 28 U.S.C. § 2253; United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012). --------
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Mr. Masko is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge Date: January 17, 2020