United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
THOMAS M. BLEWITT, UNITED STATES MAGISTRATE JUDGE
I. Procedural Background.
On December 11, 2013, Petitioner Rafael Santos, an inmate at FCI-Allenwood, White Deer, Pennsylvania, filed, pro se, his fourth Petition for Writ of Habeas Corpus with this Court under 28 U.S.C. § 2241. (Doc. 1). Petitioner paid the filing fee on January 29, 2013.
We find that Petitioner Santos’ fourth habeas petition is barred by the abuse-of-the writ doctrine, is a successive petition, and that a §2255 motion is his proper remedy with respect to his continued challenge to his federal conviction and sentence to life imprisonment. Since Petitioner Santos had three (3) prior opportunities to justify his §2241 habeas petition and to plead the validity of his present claim, we find that the Court can sua sponte dismiss his instant petition as an abuse of the writ without giving him notice and a chance to respond. Regardless, we also find that Petitioner‘s instant petition is subject to dismissal as a successive petition and for lack of jurisdiction.
Petitioner Santos filed his first §2241 habeas petition with this Court on August 19, 2002. See Santos v. Dodrill, Civil No. 02-1449, M.D. Pa. Petitioner claimed that §2255 was inadequate and ineffective to challenge his conviction and life sentence based on the case of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), since he claimed that Ring created a new substantive rule of criminal law. We agreed with Respondent that Petitioner’s first habeas petition should be dismissed for lack of jurisdiction. On April 3, 2003, we issued a Report and Recommendation (“R&R”) and recommend that Petitioner Santos’ Civil No. 02-1449 habeas petition be dismissed for lack of jurisdiction since § 2255 was his remedy. On May 14, 2003, the Court adopted our R&R and closed the case.
Petitioner Santos then filed his second §2241 habeas petition with this Court on August 19, 2010. See Santos v. Ebbert, Civil No. 10-1746, M.D. Pa. On September 23, 2010, we issued an R&R and recommended that Petitioner Santos’ Civil No. 10-1746 habeas petition be dismissed. Specifically, we recommended that Petitioner’s habeas claim relating to his pay grade be dismissed since it was not a core habeas claim and it was not cognizable in a § 2241 habeas petition. On December 3, 2010, the Court adopted our R&R in Civil No. 10-1746 and closed the case.
On December 8, 2011, Petitioner Santos filed his third §2241 habeas petition with this Court, Santos v. Ebbert Civil No. 11-2270, M.D. Pa. Petitioner Santos claimed, in part, that he only shot himself in the hand and shot into the floor. Petitioner stated that he had a Motion under 18 U.S.C. §3600 pending with the District Court for the Southern District of New York seeking a DNA test on a bullet recovered from the apartment which was alleged to have been a round from his gun which struck federal agent Travers. Petitioner stated that the bullet which struck Travers ballistically matched another federal agent’s gun and not his (Petitioner’s) gun. Petitioner contended that the bullet used as evidence at his criminal trial to show that he shot Travers was actually the bullet from his gun which struck him (not Travers) and that DNA testing will prove that the bullet from his gun was not the one that hit Travers. Petitioner also claimed that the DNA testing would show that the bullet which his Travers had to have come from the gun of another federal agent.
On January 31, 2012, we issued an R&R and recommended that Petitioner Santos’ §2241 Petition for Writ of Habeas Corpus filed in Civil No. 11-2270 be dismissed, without directing service of it on Respondent, for lack of jurisdiction. Petitioner filed Objections to our R&R. On May 10, 2012, the Court adopted our R&R and dismissed Petitioner’s Civil No. 11-2270 habeas case for lack of jurisdiction. The Court issued a 17-page Memorandum along with an Order and fully discussed why Petitioner Santos’ claims, including his claim regarding his request for DAN testing on the bullet used as trial evidence, did not show his actual innocence and that Santos failed to show cause why he did not raise this issue when he filed his first §2255 motion with the trial court.
Also, Santos filed a Bivens civil rights with this Court on January 6, 2011. See Santos v. United States, Civil No. 11-0040, M.D. Pa. On July 22, 2011, we issued an R&R and recommended that Defendant Corrective Care, Inc., be dismissed from this case under Rule 4(m) without prejudice. We also recommended that Defendant United States’ Motion for Summary Judgment be granted. On August 11, 2011, the Court adopted our R&R in Civil No. 11-0040 and closed the case.
Additionally, Santos filed an FTCA action with this Court on July 13, 2012. See Santos v. United States, Civil No. 12-1363, M.D. Pa. On August 8, 2012, the Court adopted our R&R and granted Defendant United States’ Motion to Dismiss. The Court then closed this case.
Now, as stated, Petitioner Santos files his fourth §2241 habeas petition with this Court again challenging his federal conviction and life sentence. We again find that Petitioner ‘s latest attempt to gain his release from prison to be unavailing. Basically, the main difference between Petitioner’s Civil No. 11-2270 habeas case and his present petition is that the sentencing court has denied his motion for DNA testing. Thus, Petitioner now seeks this Court to order DNA testing on the bullet since he was not successful with the sentencing court.
Named as Respondent in the present habeas petition is FCI-Allenwood Warden Monica Rectenwald. The habeas petition has not yet been served on Respondent for a response.
We now give preliminary consideration to Santos’ fourth habeas petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions under Rule 1(b)). See Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa. 1979); Romero v. Holt, 2006 WL 3437360 (M.D. Pa.); Winfield v. Martinez, 2008 WL 4541945 (M.D. Pa.); Francis v. U.S. , 2009 WL 1010522 (M.D. Pa.); Rivera v. Scism, Civil No. 10-1773, M.D. Pa. We find that the Court should dismiss Petitioner Santos’ fourth §2241 habeas petition for lack of jurisdiction since we again find that a §2255 motion is his remedy. See Romero v. Holt, 240 Fed.Appx. 934 (3d Cir. 2007). As stated, we also find that Petitioner Santos’ fourth habeas petition is barred by the abuse-of-the writ doctrine and that it is a successive petition.
In Romero v. Holt, Petitioner Romero was a co-Defendant of Petitioner Santos and Albert Rodriguez in a narcotic trafficking case in the Southern District of New York, which is the criminal case at issue herein, U.S. v. Santos , 897 F.2d 47 (2d Cir. 1990). Romero filed a §2241 habeas petition similar to the habeas petition Petitioner Santos filed in Civil No. 11-2270, Middle District of Pennsylvania. Romero claimed, in part, the he was actually innocent of conspiring to murder a federal agent. This Court dismissed Romero’s habeas petition for lack of jurisdiction since it found, with respect to most of Romero’s claims, that §2255 was an adequate remedy. See Romero v. Holt, 2007 3437360 (M.D. Pa. 11-29-06), affirmed 240 Fed.Appx. 934 (3d Cir. 2007). Also, as stated, this Court found in Petitioner Santos’ Civil No. 11-2270 case the a §2255 motion was his proper remedy regarding his habeas claims, including his claim that a DNA test would prove that his gun did not fire the bullet which struck federal agent Travers.
In his Civil No. 11-2270 case, Petitioner Santos, like Romero, stated that he was actually innocent of the crimes of conspiring to murder a federal officer, attempted murder of a federal officer, assaulting a federal officer with a weapon, and conspiracy to distribute more than 5 kilograms of cocaine. As mentioned, we recommended that the Court dismiss Petitioner Santos‘ third §2241 habeas petition, Civil No. 11-2270, for lack of jurisdiction over his claims that he was actually innocent of conspiracy to murder a federal officer and attempted murder of a federal officer since §2255 was an adequate remedy to raise his claims. See Romero v. Holt, 2007 3437360 (M.D. Pa. 11-29-06), affirmed 240 Fed.Appx. 934 (3d Cir. 2007). We found that Petitioner Santos must file a motion with the Second Circuit Court of Appeals for ...