Pablo Recinos Landaverde, #51445-018, FCI Fort Dix, Fort Dix, N.J. Petitioner Pro Se.
PAUL J. FISHMAN, United States Attorney, By: David Bober, Assistant U.S. Attorney United States Attorney's Office, Trenton, NJ, Attorneys for Respondent.
JEROME B. SIMANDLE, , Chief District Judge.
Pablo Recinos Landaverde, a federal inmate confined at FCI Fort Dix in New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his imprisonment pursuant to a federal sentence imposed in the United States District Court for the Middle District of Florida, after he pled guilty to conspiracy to possess with intent to distribute five or more kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503(a)(1), 70506(a), and 70506(b), and 21 U.S.C. § 960(b)(1)(B)(ii). See United States v. Landaverde, Criminal No. 09-0582 (M.D. Fla.). Respondent filed an Answer and the declaration of David Bober, together with exhibits. Petitioner filed a Reply. Having thoroughly reviewed the record, this Court will dismiss the Petition for lack of jurisdiction.
Pursuant to a guilty plea entered on March 23, 2010, Petitioner was convicted in the U.S. District Court for the Middle District of Florida of conspiracy to possess with intent to distribute five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 21 U.S.C. § 960(b)(1)(B)(ii) and 46 U.S.C. §§ 70503(a), 70506(a) and (b), provisions of the Maritime Drug Law Enforcement Act ("MDLEA"). United States v. Landaverde, Criminal No. 09-0582 (M.D. Fla.). The district judge accepted Petitioner's guilty plea on April 7, 2010 and on June 24, 2010, Petitioner was sentenced to 168 months of imprisonment. See id.
Petitioner is now incarcerated at FCI Fort Dix in New Jersey and signed his § 2241 Petition on December 18, 2012. He brings this case stating two grounds for relief: "New 11th Circuit law, no jurisdiction to arrest and detained" and "Illegal incarceration - no jurisdiction for the Court to impose a prison sentence." (Petition, docket entry no. 1, page 6 of 8.)
In a memorandum accompanying the Petition, he argues that: pursuant to United States v. Bellaizac-Hurtado , 700 F.3d 1245 (11th Cir. 2012), the sentencing court was without jurisdiction to impose a sentence, and the "act for which Petitioner was convicted is no longer considered to be a crime, and he cannot raise this issue in a § 2255 motion." (Petition, docket entry no. 1, memorandum at pg. 1.)
Petitioner states in his memorandum that in January of 2010 he was seized by the United States Coast guard 140 miles off the coast of Colombia. (Petition, docket entry no. 1, memorandum at pg. 3.) Respondents assert in their response that, on or about December 10, 2009, the Coast Guard located Petitioner's boat in international waters approximately 150-200 miles from the coast of Colombia at geo-coordinates 11.42 North, 78.18 West. (Response, docket entry no. 5, page 4.) Upon boarding the vessel, the Coast Guard found approximately 675 kilograms of cocaine in a concealed compartment. (See id., page 5.) Respondents further state that in his plea agreement, Petitioner admitted to the geo-coordinates of the location of his boat when stopped by the Coast Guard, confirming that the location was in "international waters." (See id.)
Respondents argue that Bellaizac-Hurtado does not apply here because the vessel on which Petitioner was apprehended was stopped in international waters. Respondents assert that this Court should dismiss the Petition for lack of jurisdiction. (See Response, docket entry no. 5.) Petitioner filed a Reply further stating that the United States had no jurisdiction to arrest, extradite or prosecute him and thus his incarceration and sentence are illegal under Bellaizac-Hurtado. (Reply, docket entry no. 6.)
Section 2241 of Title 28 of the United States Code provides that the writ of habeas corpus shall not extend to a prisoner unless he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Nevertheless, a challenge to the validity of a federal conviction or sentence must be brought under 28 U.S.C. § 2255. See Davis v. United States , 417 U.S. 333 (1974); Okereke v. United States , 307 F.3d 117, 120 (3d Cir. 2002). This is because 28 U.S.C. § 2255 expressly prohibits a district court from entertaining a challenge to a prisoner's federal sentence under § 2241 unless the remedy by motion under § 2255 is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255(e); see Cradle v. U.S. ex rel. Miner , 290 F.3d 536 (3d Cir. 2002); In re Dorsainvil , 119 F.3d 245, 251 (3d Cir. 1997); Millan-Diaz v. Parker , 444 F.2d 95 (3d Cir. 1971); Application of Galante , 437 F.2d 1164 (3d Cir. 1971) (per curiam); United States ex rel. Leguillou v. Davis , 212 F.2d 681, 684 (3d Cir. 1954).
A § 2255 motion is inadequate or ineffective, authorizing resort to § 2241, only where the petitioner demonstrates that he "had no prior opportunity to challenge his conviction for a crime that an intervening change in substantive law could negate with retroactive application." Okereke v. United States , 307 F.3d 117, 120 (3d Cir. 2002) (citing Dorsainvil , 119 F.3d at 251). For example, in Dorsainvil, the Third Circuit held that § 2255 was inadequate or ineffective for Dorsainvil's claim that he was imprisoned for conduct that the Supreme Court ruled in Bailey v. United States , 516 U.S. 137 (1995), was not a crime, where the Supreme Court issued Bailey after Dorsainvil's § 2255 motion was denied on the merits and after the Third Circuit ruled that Dorsainvil could not meet either of the gatekeeping requirements under 28 U.S.C. § 2255(h) to authorize the filing of a second or successive § 2255 motion. See Dorsainvil , 119 F.3d at 250 ("A Supreme Court decision interpreting a criminal statute that resulted in the imprisonment of one whose conduct was not prohibited by law presents exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent").
Here, Petitioner claims that he is imprisoned for conduct that the Eleventh Circuit (the circuit wherein he was convicted) deemed non-criminal in United States v. Bellaizac-Hurtado , 700 F.3d 1245 (11th Cir. 2012) (after his conviction became final and the time to file a § 2255 motion expired). In Bellaizac-Hurtado, the Eleventh Circuit reversed convictions under the Maritime Drug Law Enforcement Act on direct appeal on the ground that Congress lacked "the ...