Opinion
CIV-21-89-R
04-07-2021
FRANK MICHAEL MONTE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a federal pre-trial detainee appearing pro se, initiated this action under 28 U.S.C. § 2241 seeking a writ of habeas corpus. Doc. No. 1 ("Petition"). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the action be dismissed without prejudice.
Rule 4 is applied in the discretion of the undersigned to this 28 U.S.C. § 2241 Habeas Petition. Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts.
I. Background Information
In his Petition, Petitioner alleges that he is being improperly held in the Cimarron Correctional Facility located in Cushing, Oklahoma. See generally Petition. He explains that he was transferred there on January 28, 2021, is being held pursuant to a federal criminal case pending before the United States District Court for the District of New Jersey, and is awaiting further transport. Id. at 2-4; see also Complaint, United States v. Monte, No. 19-cr-821-JMV-1 (D.N.J. Oct. 30, 2019), Doc. No. 1. In his federal criminal matter, the district court is awaiting a competency evaluation before proceeding. Minutes of Proceedings, United States v. Monte, No. 19-cr-821-JMV-1 (D.N.J. March 22, 2021), Doc. No. 117. In the present action, although the Petition is not a model of clarity, Petitioner appears to be challenging the delay in his criminal proceedings while awaiting his competency evaluation as a violation of his right to a speedy trial. Doc. No. 1. He also indicates that said evaluation is unnecessary because he is competent to proceed. Id.
With his Petition, Petitioner filed an improper request for leave to proceed in forma pauperis. Doc. No. 2. The Court ordered Petitioner to cure noted deficiencies in his request no later than March 1, 2021. Doc. No. 5. When Petitioner failed to do so, the Court issued an Order to Show Cause as to why this case should not be dismissed. Doc. No. 7. Rather than cure the deficiency in his initial request to proceed in forma pauperis, Petitioner paid the filing fee on March 24, 2021. Doc. No. 11. In the interim, Petitioner was transferred to the Los Angeles Metropolitan Detention Center ("LAMDC") located in Los Angeles, California. Doc. No. 8-2.
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . ." Rule 4, Rules Governing § 2254 Cases. "[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must "assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits . . . ." Id. (quotations omitted); Thomas v. Ulibarri, 214 F. App'x 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could "address the matter by objecting" to the report and recommendation).
III. Analysis
As an initial matter, the Court notes that a habeas corpus petition must generally be filed in the district in which the prisoner is held and/or where the sentencing court is located. 28 U.S.C. § 2241(d); Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004); Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Petitioner is currently confined in the LAMDC, which is located in Los Angeles, California and within the United States District Court for the Central District of California Western Division. 28 U.S.C. § 84(c)(2). Thus, venue is proper in that court. 28 U.S.C. §1391(b)(2).
The undersigned takes judicial notice of the location of Los Angeles, California. Fed. R. Evid. 201(b); see also United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) ("Geography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial . . . .").
Under 28 U.S.C. § 1406(a), "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Although Petitioner was confined within this district when the case was initially filed, given the early stage of this proceeding, it would be more appropriate to transfer this matter to the district in which he is currently confined. However, upon review of the Petition, the Court finds it is not in the interest of justice to do so.
Because Petitioner is challenging his pretrial proceedings and detention, he must do so within his federal criminal case. 18 U.S.C. § 3145. Within his criminal case, Petitioner can also raise his claim that his right to a speedy trial under 18 U.S.C. § 3162(a)(2) has been violated. A federal pretrial detainee usually must exhaust other available remedies before seeking habeas corpus relief under § 2241. See Chandler v. Pratt, 96 F. App'x 661, 662 (10th Cir. 2004) (rejecting the petitioner's habeas claim challenging a violation of his speedy trial rights where he could have filed a motion in his pending criminal case under 18 U.S.C. § 3162(a)(2)). See also Thompson v. Robinson, 565 F. App'x 738, 739 (10th Cir. 2014) (holding that claims relating to pre-trial detainee's pending federal criminal case must be exhausted in the criminal action, or on appeal after conviction, and not in a habeas petition) (citing Whitmer v. Levi, 276 F. App'x 217, 218 (3d Cir. 2008)); Hall v. Pratt, 97 F. App'x 246 (10th Cir. 2004) (dismissing § 2241 petition filed by federal pre-trial detainee alleging violation of the Speedy Trial Act, his Sixth Amendment right to a speedy trial, and his Fifth Amendment due process rights because he failed to exhaust available remedies in the criminal action); Gess v. USMS, No. 20-cv-01790-PAB-STV, 2020 WL 8838280, at *13 n.16 (D. Colo. Dec. 10, 2020) ("The Tenth Circuit has held that a pretrial detainee may not seek release from pretrial detention through a habeas petition based upon constitutional violations that could be or already have been raised in the detainee's criminal case." (citing Medina v. Choate, 875 F.3d 1025, 1029 (10th Cir. 2017)); Alvarez-Caceres v. Kline, No. CV-19-05414-PHX-MTL (MTM), 2020 WL 3064461, at *2 (D. Ariz. June 9, 2020) ("Habeas corpus is not the appropriate vehicle for Petitioner's pretrial challenges to his federal criminal proceedings.").
Petitioner has already challenged the New Jersey District Court's ruling that he be required to undergo a competency evaluation by filing a motion to reconsider, which the court denied. Order, United States v. Monte, No. 19-cr-821-JMV-1 (D.N.J. Jan. 14, 2021), Doc. No. 108. "To allow petitioner to bring the same claims before another judge in a collateral proceeding would not only waste judicial resources, but would encourage judge shopping." Chandler, 96 F. App'x at 662.
Moreover, if Petitioner is dissatisfied with the court's rulings in his criminal case, he may challenge the decision in an appeal to the Third Circuit Court of Appeals, if allowed pursuant to federal law. See United States v. Addonizio, 442 U.S. 178, 184 n.10 (1979) (noting that "the writ of habeas corpus should not do service for an appeal. . . . This rule must be strictly observed if orderly appellate procedure is to be maintained." (emphasis and quotations omitted)); see also Horning v. Seifart, No. 96-5070, 1997 WL 58620, at *1 (6th Cir. Feb. 11, 1997) (finding that the "habeas petition was properly dismissed as that remedy cannot be invoked to raise defenses to a pending federal criminal prosecution"). Accordingly, Petitioner has failed to present a cognizable habeas claim and this action should be dismissed.
RECOMMENDATION
Based on the foregoing reasons, the undersigned recommends Petitioner's request for habeas relief pursuant to 28 U.S.C. § 2244 be dismissed without prejudice. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 27th , 2021, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, c.f., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 7th day of April, 2021.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE