UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
October 28, 1998
EDITH GARCIA, PETITIONER,
ART BEELER, WARDEN, F.C.I. FORT DIX, RESPONDENT.
The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
Pro se petitioner, Edith Garcia ("Garcia"), is presently before this Court seeking the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Garcia claims that he is entitled to habeas corpus relief pursuant to 28 U.S.C. § 2241 because, post-sentencing, the government denied his due process rights by failing to move the sentencing court for a reduction in sentence under Fed. R. Crim. P. Rule 35(b). As the petition is improperly brought before this Court under 28 U.S.C. § 2241, we will transfer it to the sentencing court for consideration under 28 U.S.C. § 2255 without examining the merits of petitioner's claim for habeas corpus relief.
On June 30, 1994, petitioner was indicted for possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841 and conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. In October of that year, Garcia pled guilty to the conspiracy charge of the indictment pursuant to a plea agreement. In the plea agreement, he waived the right to title to four vehicles he admitted were bought with drug proceeds, in exchange for a downward adjustment of three levels in his sentence and the dismissal of the remainder of the charges against him. Garcia received 135 months in jail and began serving his sentence at FCI Allenwood.
While at FCI Allenwood, Garcia retained counsel, David Ash. In early 1995, Ash contacted Assistant United States Attorney John H. Purcell, Jr. and inquired whether the government would be interested in Garcia's cooperation regarding a drug conspiracy in exchange for the possibility that the government might be persuaded to file a Rule 35(b) motion.
On March 31, 1995, Ash, Purcell, Garcia and an agent from the Drug Enforcement Agency met to sign a proffer letter which detailed the terms of the agreement, including a clause concerning the importance of a truthful and candid statement, but which did not include a promise to make a Rule 35(b) motion. See Exh. 3 to Declaration of AUSA John Purcell.
On January 23, 1996, Ash wrote a letter to Purcell regarding the proposed Rule 35(b) motion. *fn1 Purcell responded to the letter on February 7, 1996 stating that no Rule 35(b) motion would be filed. *fn2 See Pet. Br. at App. D. The Government informed Mr. Garcia that the Rule 35(b) request was being denied because, in part, he had lied during his testimony.2
On November 10, 1995, petitioner, filed his petition for a writ of habeas corpus, pro se.
This court may not consider Garcia's habeas corpus petition, under 28 U.S.C. § 2241, because sentencing reductions should be challenged before the sentencing court under 28 U.S.C. § 2255 not under 28 U.S.C. § 2241. Therefore, this court does not have jurisdiction.
Petitioner's claim that 28 U.S.C. § 2241 is the proper vehicle for his challenge to the government's failure to make a Rule 35(b) motion is misplaced. Challenges to sentences must be made before the sentencing judge. Generally, sentences handed down by judges are final. The main exception to the finality of sentences is Rule 35(b), where the government may make a motion to the sentencing court to decrease the length of an inmate's prison term in exchange for useful testimony regarding criminal behavior. The underlying objective of Rule 35 is "to give every convicted defendant a second round before the sentencing judge, and [afford] the judge an opportunity to reconsider the sentence in light of any further information about the defendant or the case which may have been presented to him in the interim." United States v. Ellenbogen, 390 F.2d 537, 543 (2d. Cir. 1968). The motion must be brought before the sentencing judge. See United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982); United States v. Fernandez, 589 F.2d 977, 979 (9th Cir. 1978), cert. denied, 442 U.S. 911 (1979); United States v. Arnett, 628 F.2d 1162, 1165-1166 (9th Cir. 1979).
Fed. R. Crim. P. 35(b) states:
Reduction of Sentence for Substantial Assistance. If the Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant's subsequent substantial assistance in investigating or prosecuting another person, in accordance with the guidelines and policy statements issued by the Sentencing Commission under 28 U.S.C. § 994. The court may consider a government motion to reduce a sentence made one year or more after the sentence is imposed if the defendant's substantial assistance involves information or evidence not known by the defendant until one year or more after the sentence is imposed. In evaluating whether substantial assistance has been rendered, the court may consider the defendant's pre- sentence assistance. In applying this subdivision, the court may reduce the sentence to a level below that established by statute as a minimum sentence. Fed. R. Crim. P. 35(b)
Generally, the government has the discretion to make or not to make a Rule 35(b) motion and the court is not permitted, sua sponte, to grant a sentence reduction without a motion by the government. However, if the government and the defendant have established an agreement regarding a Rule 35(b) motion and the defendant has fulfilled his obligations under that agreement, then he is entitled to specific performance. "The first exception to the rule requiring the government to make a motion for the defendant to have the sentence reduced is if the government and the defendant have previously agreed that the government will file a motion if the defendant provides substantial assistance. In this situation, the defendant is entitled to specific performance of this agreement." 26 James Wm. Moore et al., Moore's Federal Practice ¶ 635.05[a] (3d ed. 1998). See United States v. Huerta, 878 F.2d 89, 93 (2d Cir. 1989), cert. denied, 493 U.S. 1046 (1990); United States v. Navarro, 732 F. Supp. 1151, 1154 (S.D. Fla.) (if the government expressly promised to file a [Rule 35(b)] motion in its plea agreement, [petitioner] would have the remedy of specific performance...), aff'd, 922 F.2d 848 (11th Cir. 1990).
Determining whether or not the government is bound to make a Rule 35(b) motion which it allegedly promised to make is not always an easy issue. Even without a written agreement, the government may still remain bound to make the Rule 35(b) motion. "The terms of a written agreement may be interpreted to include an implied condition of good faith on the part of the government, although an oral agreement will also be enforceable." 26 James Wm. Moore et al., Moore's Federal Practice ¶ 635.05[b] (3d ed. 1998). See United States v. Knight, 968 F.2d 1483, 1486 (2d Cir. 1992).
Before determining on the merits whether the government has failed to comply with the alleged agreement to make a Rule 35(b) motion, the court must decide whether the petitioner may properly ask this court for relief. In order to decide whether 28 U.S.C. § 2241 or 28 U.S.C. § 2255 is the correct vehicle for challenging the government's refusal to make a Rule 35(b) motion on behalf of the petitioner, we must first examine the language of the two statues. Section 2255 provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence. ... An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief pursuant to this section, 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.
Section 2241 provides:
(c) The writ of habeas corpus shall not be extended to a prisoner unless-
(1) He is in custody under or by color of the authority of the United States or is committed to trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of court or judge of the United States; or
(3) He is in custody in violation of the Constitution or law or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It necessary to bring him into court to testify or for trial. 28 U.S.C. § 2241.
Section 2255 was designed to correct mistakes which occurred at trial or sentencing and to give sentencing judges an opportunity to make changes to petitioner's sentence. Here, the error petitioner alleges was not committed during trial or sentencing and the sentencing judge had nothing to do with the government's decision not to file the Rule 35(b) motion. Thus § 2255 might appear to be the improper vehicle under which to seek relief because, as with most Rule 35(b) motion cases, the sentencing judge was neither aware of nor involved in the proposed substantial assistance sentence reduction.
Petitioner contends that § 2241, the traditional habeas corpus provision, is the proper statute under which to proceed because it is under this section that a prisoner may file for relief when "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241. Petitioner infers by his reference to Federal Habeas Corpus Practice and Procedure, § 41.2(b) at 1185 n.20, a passage dealing with § 2241 petitions, that because the events he challenges took place post-sentencing, § 2255 is ineffective. Petitioner is correct in asserting that the post-sentencing nature of the petition clouds the jurisdictional issue, but he is not necessarily correct in assuming that § 2255 is not the proper statute under which to seek relief where the government allegedly breaches an agreement to make a Rule 35(b) motion.
According to Federal Habeas Corpus Practice and Procedure, § 2241 is the appropriate means of relief only in the following narrow contexts: (1) Administration of parole; (2) Computation of credit for pre-trial detention, good time credit, and other means of shortening sentences that are administered by prison officials; (3) Prison disciplinary actions, transfers, and changes in the type of detention; (4) Prison conditions; (5) Extradition; (6) Deportation or exclusion; (7) Court martial proceedings. Federal Habeas Corpus Practice and Procedure, § 41.2(b) at 1185-1188.
These contexts are similar to the situation at bar in that none are the product of an error made by the sentencing judge. Since Rule 35(b) motions are not entered by the sentencing judge and they are "other means of shortening sentences," it is understandable why petitioner would argue that § 2241, rather than § 2255, affords him relief.
Nevertheless, most courts appear to accept that challenges to the government's failure to make a Rule 35(b) motion are more properly brought under § 2255. There are a plethora of cases where prisoners have filed for relief in Rule 35(b) situations and most, if not all, have been decided under § 2255. See United States v. Nino, 878 F.2d 101, 103 (3d Cir. 1989); United States v. Gibbs, 813 F.2d 596, 603 (3d Cir. 1986). In fact, the Seventh Circuit has held that challenges to the government's breach of an agreement to file a Rule 35(b) motion must be brought under § 2255. See Jackson v. Pitzer, 108 F.3d 1379 (7th Cir. 1997); Thurman v. Gramley, 97 F.3d 259, 264 (7th Cir. 1994); Carnine v. United States, 974 F.2d 924, 927 (7th Cir. 1992).
Historically, the courts have used § 2255 when examining Rule 35(b) questions. The logic behind that choice is consistent with the desire to both preserve the integrity of the sentencing system and maintain its efficiency. Having the sentencing court address the merits of petitioner's petition under § 2255 preserves the integrity of the sentencing system by ensuring that the same judge decides both 1) whether or not the government's alleged promise to make a Rule 35(b) motion must be specifically enforced and 2) if the promise must be enforced and the motion made, whether or not a reduction in sentence is warranted. We recognize, without making any pronouncement on this particular petitioner's right to a reduction, that Rule 35(b) motions are generally unsuccessful. However, because not all Rule 35(b) motions are denied and some prisoners do receive reductions after the government has made a motion, see United States v. Moscahlaidis, 868 F.2d 1357 (3d Cir. 1989); United States v. Arnett, 628 F.2d 1162 (9th Cir. 1979); United States v. Amaya, 111 F.3d 386 (5th Cir. 1997), *fn3 a challenge to the government's failure to make the Rule 35(b) motion goes directly to the imposition of a petitioner's sentence, an issue that must be determined under § 2255. If petitioner were successful in obtaining a reduction after the government made its motion, the sentencing judge would be required to modify the sentence originally imposed. Thus, petitioner's claim that the government breached its agreement to make the Rule 35(b) motion is inextricably connected to the imposition of his sentence. The finality of another judge's imposition of a sentence might be threatened if this court undertook the determination of whether or not the government has violated petitioner's constitutional rights by its refusal to move for a sentence reduction under Rule 35(b). This result cannot be permitted.
Requiring the sentencing judge to hear petitioner's claim under § 2255 also promotes judicial efficiency. In Rule 35(b) motion disputes, the person most well suited to make an objective review in a timely and equitable fashion is the person who handed down the original sentence. Considering the enormity of some records and the complexity of most situations, it is foreseeable that an large amount of time and money would be wasted were we to subject a new judge to the task of reexamining a case previously handled by the sentencing judge. Accordingly, petitioner must seek relief under § 2255 rather than § 2241 in order to effectuate the design of our sentencing system.
When a petition is filed in a court without proper venue, the court has the discretion, pursuant to 28 U.S.C. §1406(a), to transfer the case to a court that has jurisdiction. *fn4 Pursuant to 28 U.S.C. § 2255, the sentencing court has jurisdiction over this case, and, accordingly, we will transfer it there.
For the foregoing reasons, we will transfer this case to the sentencing court, the United States District Court for the District of Maryland, pursuant to 28 U.S.C. § 1406(a).
JOSEPH E. IRENAS,U.S.D.J