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Petitioner v. United States

United States District Court, M.D. Pennsylvania

March 17, 2014

YAKOV DRABOVSKIY Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, Magistrate Judge.

I. Statement of Facts and of the Case

Over the past four years, the petitioner, Yakov Drabovskiy, a federal prisoner, has filed numerous successive petitions for writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2241. Drabovskiy v. Ebbert, 4:10-CV-1830, Drabovskiy v. Warden FCI Allenwood, 4:10-2226, Drabovskiy v. Warden FCI Allenwood, 3:13-CV-383; Drabovskiy v. U.S. Department of Homeland Security, 3:14-CV-451. In these prior petitions, the petitioner recited that he was an inmate currently incarcerated at the Federal Correctional Institution, Allenwood, where he is serving a five-and-one-half year sentence, following a federal conviction in the United States District Court for the Western District of Louisiana. (Id.) The petitioner's various past pleadings then sought to either collaterally challenge this conviction on a variety of grounds, or further attempted to seek to stymie anticipated future efforts at deportation of the petitioner upon completion of his current federal sentence. Each of these prior efforts was rebuffed by both this Court and the court of appeals, which have found Drabovskiy's petitions to be procedurally flawed and have dismissed Drabovskiy's petitions. Drabovskiy v. Warden FCI Allenwood, 534 F.Appx. 98, 100 (3d Cir. 2013); Drabovskiy v. Warden, FCI-Allenwood, 4:10-CV-2226, 2010 WL 5463069 (M.D. Pa. Dec. 29, 2010); Drabovskiy v. Warden, FCI Allenwood, 4:10-CV-2226, 2010 WL 5463332 (M.D. Pa. Nov. 1, 2010) report and recommendation adopted sub nom. Drabovskiy v. Warden, FCI-Allenwood, 4:10-CV-2226, 2010 WL 5463069 (M.D. Pa. Dec. 29, 2010). These claims have also been rebuffed by other federal courts, which have also been asked in the past to consider similar habeas corpus petitions filed by this prolific petitioner. See, e.g., Drabovskiy v. Young, 07-1385, 2009 WL 89638 (W.D. La. Jan. 13, 2009); Drabovskiy v. Young, 2:07-CV-1385, 2008 WL 4853327 (W.D. La. Sept. 30, 2008); Drabovskiy v. Young, CIV.A. 07-1385, 2007 WL 4302645 (W.D. La. Oct. 17, 2007); Drabovskiy v. United States, CIV.A. 06CV159HRW, 2007 WL 852225 (E.D. Ky. Jan. 12, 2007).

Undeterred, Drabovskiy has filed the instant petition, his fifth successive federal habeas corpus petition which seeks to collaterally challenge his federal convictions in Louisiana, and appears to also presumptively challenge both his past immigration detention and any the immigration detention he may face in the future upon completion of his federal sentences. (Doc. 1) Since Drabovskiy's latest federal habeas corpus petition continues to suffer from the same procedural flaws that marred his prior petitions, it should face the same legal fate, dismissal. Accordingly, for the reasons set forth below it is recommended that this petition be dismissed.

II. Discussion

A. This Petition Should Be Dismissed Since It Does Not Meet the Prerequisites for Habeas Relief Under 28 U.S.C. § 2241

1. This Petition Must Be Dismissed as an Unauthorized Successive Petition

This petition is subject to summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 28 U.S.C. § 2254 (Rule 4 applies to § 2241 petitions under Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts). See, e.g., Patton v. Fenton , 491 F.Supp. 156, 158-59 (M.D. Pa. 1979) (explaining that Rule 4 is "applicable to Section 2241 petitions through Rule 1(b)"). Rule 4 provides in pertinent part: "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Judged against these standards, Drabovskiy's latest petition fails for several reasons. First, the petitioner's efforts to re-litigate this habeas claim for the fourth time runs afoul of the statute governing such claims, 28 U.S.C. §2244(a), which provides in part that:

No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.

28 U.S.C. § 2244

In this case, the instant petition is undeniably a successive petition which raised claims that have previously been rejected by this and other courts, and which has not been properly authorized by the court of appeals as a second and successive petition pursuant to 28 U.S.C. §2244. In such situations, where a petitioner persists in litigation of successive claims without following the requirements prescribed by law for filing successive petitions, summary dismissal of the petition is appropriate. See Graham v. Warden, FCI Allenwood, 348 F.Appx. 706 (3d Cir. 2009); Silva v. Fisher, CIV. 12-1934 ADM/AJB, 2012 WL 4794363 (D. Minn. Aug. 22, 2012) report and recommendation adopted, CIV. 12-1934 ADM/AJB, 2012 WL 4794138 (D. Minn. Oct. 9, 2012); Drabovskiy v. Warden, FCI Allenwood, 4:10-CV-2226, 2010 WL 5463332 (M.D. Pa. Nov. 1, 2010) report and recommendation adopted sub nom. Drabovskiy v. Warden, FCI-Allenwood, 4:10-CV-2226, 2010 WL 5463069 (M.D. Pa. Dec. 29, 2010) Brown v. Bledsoe, CIV. 3:CV-09-2258, 2009 WL 4060858 (M.D. Pa. Nov. 23, 2009) aff'd, 366 F.Appx. 326 (3d Cir. 2010).

2. The Petition Should be Brought Under § 2255 in the District of Conviction

Further, to the extent that the petitioner still wishes to further challenge his conviction and sentence, as we have told him in the past it is clear that he must do so through a motion brought before the sentencing court under 28 U.S.C. § 2255, and not through a habeas petition under § 2241. Indeed, it is well-settled that: "[T]he usual avenue for federal prisoners seeking to challenge the legality of their confinement, " including a challenge to the validity of a sentence, is by way of a motion filed under 28 U.S.C. § 2255. In re Dorsainvil , 119 F.3d 245, 249 (3d Cir. 1997). See also United States v. Miller , 197 F.3d 644, 648 n.2 (3d Cir. 1999) (stating that § 2255 provides federal prisoners a means by which to bring collateral attacks challenging the validity of their judgment and sentence); Snead v. Warden, F.C.I. Allenwood , 110 F.Supp.2d 350, 352 (M.D. Pa. 2000) (finding that challenges to a federal sentence should be brought in a motion filed under 28 U.S.C. § 2255). Section 2255 specifically provides the remedy to federally-sentenced prisoners that is the equivalent to the relief historically available under the habeas writ. See Hill v. United States , 368 U.S. 424, 427 (1962) (stating, "it conclusively appears from the historic context in which § 2255 was enacted that the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined"). Therefore, as a general rule, a § 2255 motion "supersedes habeas corpus and provides the exclusive remedy" to one in custody pursuant to a federal court conviction. Strollo v. Alldredge , 463 F.2d 1194, 1195 (3d Cir. 1972). It is clear that "Section 2241 is not an additional, alternative or supplemental remedy to 28 U.S.C. § 2255.'" Gomez v. Miner, No. 3:CV-06-1552 , 2006 WL 2471586, at *1 (M.D. Pa. Aug. 24, 2006) (quoting Myers v. Booker , 232 F.3d 902 (10th Cir. 2000)) In sum, Section 2255 motions are now the exclusive means by which a federal prisoner can challenge a conviction or sentence that allegedly is in violation of the Constitution or federal laws or that is otherwise subject to collateral attack; see Davis v. United States , 417 U.S. 333, 343 (1974), and federal inmates who wish to challenge the lawfulness of their sentences must typically file motions under § 2255.

This general rule admits of only one, narrowly-tailored, exception. A defendant denied relief under §2255 is permitted to pursue relief under 28 U.S.C. § 2241 only where he shows that the remedy under § 2255 would be "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e); see also United States v. Brooks , 230 F.3d 643, 647 (3d Cir. 2000) (recognizing availability of § 2241 in cases where petitioners have no other means of having claims heard). The inadequacy or ineffectiveness must be "a limitation of scope or procedure... prevent[ing] a § 2255 proceeding from affording... a full hearing and adjudication of [a] wrongful detention claim." Okereke v. United States , 307 F.3d 120 (3d Cir. 2002) (citing Cradle v. United States , 290 F.3d 536, 538 (3d Cir. 2002) (per curiam)). "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Cradle , 290 F.3d at 538-39 (citing Garris v. Lindsay , 794 F.2d 722, 727 (D.C. Cir. 1986)). Accordingly, "[s]ection 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to ...


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