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Robert S. Visintine v. Donna Zickefoose

August 12, 2011

ROBERT S. VISINTINE, PETITIONER,
v.
DONNA ZICKEFOOSE, RESPONDENT.



The opinion of the court was delivered by: Bumb, District Judge

NOT FOR PUBLICATION

OPINION

Petitioner Robert S. Visintine, a prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, submitted a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. For the following reasons, Petitioner's claims under § 2241 will be dismissed; however, because Petitioner raises claims concerning the lack of adequate medical treatment in both his petition, and pending motions, this Court will direct that a separate civil action be opened to address those claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971).

BACKGROUND

According to the petition, on October 16, 1992, Petitioner pled guilty in the United States District Court, Southern District of Ohio, to 435 months imprisonment for armed bank robbery and use of a gun in the commission of a crime of violence. (Petition, ¶¶ 1-4). According to the docket of his criminal case, United States v. Visintine, 92-cr-96 (S.D. Ohio), Petitioner appealed to the circuit court. Furthermore, it appears that Petitioner filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See Visintine v. United States, 95-cv-900 (S.D. Ohio), which was denied, with the denial affirmed on appeal.

On May 3, 2011, Petitioner filed in this District Court a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner alleges in his petition that:

. . . the Warden does not have a Constitutionally valid judgment and conviction order to imprison [him]. In 1991-1992, medication was denied and withheld (knowingly and intentionally) to coerce Visintine to plea[d] guilty to crimes without an information or indictment, and constructive denial of assistance of counsel (5th & 6th Amend. violations) . . . ." (Pet., ¶ 7). Furthermore, Petitioner requests:

. . . immediate and unconditional release where the plea of guilty was un-Constitutional- not knowing, not intelligent and not voluntary, a result of cruel and unusual punishment and the denial of the 5th Amend. requirement of an indictment or an information, due process of law clause, and a constructive denial of the 6th Amend. effective assistance of counsel for his defense.

(Pet., p. 5). Thus, Petitioner argues that his imprisonment is in violation of the Constitution.

However, Petitioner also asserts that he is being denied medication, and complains about the conditions of confinement at the Fort Dix facility. For example, he states that he has been forced to take his medication before eating; that he has been refused medication; that the prison is overcrowded, and the bathrooms are not clean; that violence has increased; and other complaints. (Pet., ¶ 7).

Additionally, Petitioner has filed four motions, addressing his medical complaints and asserting that he is not receiving adequate medical care.

DISCUSSION

A. Jurisdiction

To begin, the Court notes that a pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 ...


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