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Anibal Soler v. Warden Ricardo Martinez

January 26, 2011

ANIBAL SOLER, PETITIONER
v.
WARDEN RICARDO MARTINEZ,
RESPONDENT



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

January 26, 2011 THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Anibal Soler ("Petitioner" or "Soler"), an inmate presently confined at the United States Penitentiary at Allenwood ("USP Allenwood")in White Deer, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. (Doc. 1.) He also has filed a Motion requesting leave to proceed in forma pauperis. (Doc. 2.) Petitioner's Motion will be granted for the sole purpose of filing the Petition, and, for the reasons set forth below, the Petition will be dismissed for lack of jurisdiction.

I. FACTUAL BACKGROUND

In his Petition, filed on December 16, 2010, Soler states that he is challenging his conviction in the United States District Court for the District of Massachusetts and sentence of life imprisonment plus sixty (60) years. (Doc. 1 at 2 (citing USA v. Soler,

D. Mass. Docket No. 3:99-CR-30030.) Soler states that he appealed his conviction to the United States Court of Appeals for the First Circuit. Although Soler does not specify the outcome of his appeal, a search of Westlaw reveals that, on January 4, 2002, the United States Court of Appeals for the First Circuit affirmed in part and reversed in part his convictions. USA v. Soler, 275 F.3d 146 (1st Cir. 2002). In its opinion, the First Circuit summarized the relevant background as to Soler's indictment as follows:

On the morning of July 21, 1999, five men-Thomas Dudek, Christopher Stevenson, Edward Thompson, Matthew Lawrence, and Granger Fulton-gathered at Stevenson's apartment in Sunderland, Massachusetts. The men drank heavily, and Lawrence and Fulton eventually passed out. Despite having consumed between ten and twenty beers apiece, the other three drove to Holyoke in search of cocaine. Dudek, apparently the most drug-savvy of the three, directed Thompson to drive to 67 Newton St. Thompson remained in the car while his confreres climbed an exterior staircase at the back of the building.

Dudek previously had purchased cocaine on the second floor, but this time he and Stevenson ascended to the third-floor landing where a makeshift door, constructed of plywood and chicken wire, blocked further access. Defendant-appellant Anibal Soler met them at that point. When asked what they wanted, Stevenson replied, "$200 worth." The appellant retreated inside and emerged with twenty plastic bags labeled "Me Salve." He handed them to Dudek in exchange for cash.

As matters turned out, the bags contained heroin, not cocaine. Dudek apparently recognized that fact, but said nothing to the others. Stevenson began to snort some of the heroin inside the car. The men drove to Thompson's apartment in Chicopee, where all three proceeded to snort heroin until they collapsed.

Thompson's girlfriend appeared on the scene hours later and tried to revive him. Failing in this effort, she called for help. Dudek awoke before the paramedics arrived, but his two friends remained comatose. The paramedics rushed all three men to the hospital and, soon thereafter, Thompson was pronounced dead.

The authorities immediately undertook an investigation and enlisted Dudek's cooperation (Stevenson did not awake from his coma until seven days later). Upon learning the source of the heroin, they decided to dispatch an undercover state trooper, Juan Colon, to 67 Newton St. On the following day (July 22), Colon, posing as a customer, climbed the exterior stairs to the third-floor landing. When he called into the apartment, a pregnant female emerged and asked what he wanted. Colon responded, "two bags." The woman left the doorway momentarily (as the appellant had done when Dudek appeared) and returned with two bags of heroin, one stamped "e Salve" (an obvious error in which the "M" in "Me Salve" presumably missed the bag's surface during the stamping process) and the other "Blunt." Colon handed her a $20 bill and departed.

Later that day, Colon revisited the third-floor landing. This time, the appellant responded and sold him two bags of heroin, both labeled "Blunt." Once again, Colon paid for the drugs with a $20 bill. The authorities then executed a search warrant for the third-floor apartment. Both the appellant and the pregnant woman were there when the police arrived-and both attempted to flee.

A search of the premises yielded, among other things, thirty bags of heroin (all labeled "Blunt") and over $5,000 in United States currency. Stashed with the heroin was $1,010 in cash, including the two $20 bills that Colon had used to pay for his purchases from the pregnant woman and the appellant, respectively.

In due course, a federal grand jury handed up a five-count indictment. The indictment charged the appellant with distribution of heroin, death resulting, on July 21, 1999, in violation ...


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