Opinion
Criminal No. 04-173 ADM/RLE.
February 4, 2005
Timothy C. Rank, Esq., and Nicole A. Engisch, Esq., Assistant United States Attorneys, on behalf of Plaintiff.
Dennis Eugene Mentzos, pro se.
ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendant Dennis Eugene Mentzos' ("Defendant") Appeal [Docket No. 51] of Magistrate Judge Raymond L. Erickson's Order of November 18, 2004 [Docket No. 48]. The Order denied Defendant's Motion to Transfer Custody [Docket No. 41]. For the reasons set forth below, the Order is affirmed. The procedural and factual background, described in the Order, is incorporated by reference.
II. DISCUSSION
In reviewing a pretrial matter, the district court may reconsider the matter "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). See also D. Minn. LR 72.1(b)(2) (in the case of an appeal of a magistrate judge's order on a nondispositive pretrial matter, "a Judge of the Court shall consider the appeal and set aside any portion of the Magistrate Judge's order found to be clearly erroneous or contrary to law").
A. Pro Se Appeal Procedural Issue
As a preliminary matter, the United States objects to the Defendant's pro se Appeal because Defendant is represented by counsel. The United States cites United States v. Agofsky, for the proposition that "there is no constitutional or statutory right to simultaneously proceed pro se and with the benefit of counsel." 20 F.3d 866, 872 (8th Cir. 1994). It is true that "[g]enerally it is Eighth Circuit policy to refuse to consider pro se filings when a party is represented by counsel." United States v. Blum, 65 F.3d 1436, 1434 n. 2 (8th Cir. 1995). However, there is no "explicit rule barring pro se filings by represented parties." Agofsky, 20 F.3d at 872. Therefore, this Court may overlook the threshold procedural issue in order to address the merits of Defendant's Appeal, and in this case, will do so.
B. Merits of Motion to Transfer Custody
Under 18 U.S.C. § 4042, the Attorney General of the United States has the exclusive authority to transfer federal prisoners.See, e.g., Konigsberg v. Ciccone, 417 F.2d 161, 163 (8th Cir. 1969); see also Brown-Bey v. United States, 720 F.2d 467, 470 (7th Cir. 1983) (finding that the Attorney General has the authority to transfer prisoners "from one place of confinement to another at any time for any reason whatsoever or for no reason at all"); Lawrence v. Willingham, 373 F.2d 731 (10th Cir. 1967) (stating that the Attorney General has the exclusive authority to transfer prisoners). This exclusive authority "has been construed to apply to patients in medical centers as well as other institutions." Konigsberg, 417 F.2d at 163.
"The action of the Attorney General in designating [a prisoner's] place of confinement is not reviewable by the Court."Fennell v. Carlson, 466 F. Supp. 56, 60 (D. Okla. 1978). See also Thogmartin v. Moseley, 313 F. Supp. 158, 160 (D. Kan. 1970) ("Courts have no authority to designate the place of confinement"). "In the absence of exceptional circumstances or the denial of a federal constitutional or statutory right, the exercise of that discretion will not be reviewed in the Courts." Harvey v. United States, 615 F. Supp. 1046, 1048 (W.D. Mo. 1985) (citations omitted). See also Trice v. Kerr, 578 F. Supp. 149, 152 (W.D. Wis. 1983) (stating that the Attorney General has the authority to transfer inmates in his discretion absent constitutionally impermissible reasons); Sutton v. Ciccone, 292 F. Supp. 374, 375 (W.D. Mo. 1968) (stating that "[i]n the absence of a showing of arbitrariness or capriciousness, the decision of the Attorney General is conclusive") (citations omitted).
In his Motion to Transfer Custody, Defendant stated two purposes for the Motion. (Def.'s Mot. at 1.) First, Defendant asserted that transfer would allow him to return to an institution where he could receive psychiatric and psychological counseling. Id. Second, Defendant asserted the federal government would be saved the cost of his local incarceration during the pendency of this criminal matter. Id. However, neither of these stated purposes is an exceptional circumstance, or the denial of a federal or statutory right, which would merit review by this Court. Similarly, there is no showing of arbitrariness or capriciousness that would merit review. See, e.g., Genovese v. Ciccone, 331 F. Supp. 1117, 1118-19 (W.D. Mo. 1971) (holding that the Petitioner did not state the denial of any federal right or otherwise state exceptional circumstances which would merit transfer from a medical center based on his allegations of improper medical treatment).
In his Appeal, Defendant raises the claim of an equal protection violation which was not included in his Motion to Transfer. Defendant claims that he is in a selectively targeted category because he is a minority, and other patients who are similarly situated but are not minorities are allowed to remain in the treatment center, while Defendant was transferred. (Def.'s Appeal at 8.) It would be improper to consider this new argument of the Defendant in the Appeal of the Motion to Transfer. "The `purpose of referring cases to a magistrate . . . would be contravened if parties were allowed to present only selected issues to the magistrate, reserving their panoply of contentions for the trial court.'" Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000) (quoting Reciprocal Exch. v. Noland, 542 F.2d 462, 464 (8th Cir. 1976)). Because this argument was not included in the Motion to Transfer, this new claim on appeal will not be considered.
In his Appeal, Defendant also raises the claim of ineffective assistance of counsel. Defendant claims that the transfer matter was scheduled without his knowledge, that he was not allowed to present evidence in support of the transfer, that he was ignored, and that his attorney has ineffectively represented him in violation of his violation of his 4th, 6th and 14th amendment rights. (Def.'s Appeal at 1.) In Strickland v. Washington, the Supreme Court set forth the standard for ineffective assistance of counsel claims. 466 U.S. 668 (1984). To properly demonstrate a claim, a defendant must show that his attorney's representation fell below an objective reasonable standard of reasonableness.Id. at 687-88. Additionally, the defendant must make a showing of prejudice; that is, that a reasonable probability exists that but for the attorney's errors, the result of the proceeding would have been different. Id. at 694. Defendant's assertions fail to meet either of these standards. The Defendant failed to show that the alleged wrongs either 1) demonstrate that his attorney's representation fell below an objective reasonable standard of reasonableness or 2) prejudiced the outcome of his case in any way. Therefore, Defendant's claim of ineffective assistance of counsel must fail.
Defendant has failed to state an exceptional circumstance, or the denial of a federal or statutory right, which would merit review by this Court. Therefore, his Motion to Transfer fails. Because Judge Erickson's Order denying Defendant's Motion is not clearly erroneous or contrary to law, the Order will be affirmed.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. The Order [Docket No. 48] is AFFIRMED; and
2. Defendant's Motion to Transfer Custody [Docket No. 41] is DENIED.