The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING IN PART PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS
ORDER GRANTING IN PART RESPONDENT'S MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS
ORDER DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT
Petitioner is a federal prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on November 7, 2007, and on behalf of Respondent on June 9, 2010.
Pending before the Court is Respondent's motion to dismiss the petition for lack of subject matter jurisdiction, filed on September 8, 2010. Petitioner filed an opposition (doc. 53) on October 7, 2010.*fn1 Petitioner's earlier objection to the motion (doc. 51), filed on September 27, 2010, was deemed by a previous order to be a partial opposition to the motion. No reply was filed.
I. In Personam Jurisdiction pursuant to 28 U.S.C. § 2241 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9 th Cir. 1997). Petitioner filed his petition for writ of habeas corpus on October 1, 2007. Thus, the AEDPA applies to the petition.
With respect to jurisdiction over the person, 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon the prisoner, but upon the prisoner's custodian. Braden v. 30 th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 (1973). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). It is sufficient if the custodian is in the territorial jurisdiction of the court at the time the petition is filed; transfer of the petitioner thereafter does not defeat personal jurisdiction that has once been properly established. Ahrens v. Clark, 335 U.S. 188, 193 (1948), overruled on other grounds in Braden v. 30 th Judicial Circuit Court of Kentucky, 410 U.S. at 193, citing Mitsuye Endo, 323 U.S. 283, 305 (1944); Francis v. Rison, 894 F.2d 353, 354 (9 th Cir. 1990).
Petitioner initially named the warden of the United States Penitentiary at Atwater, California, the institution where he was confined at the time the petition was filed; that institution was within the territorial jurisdiction of this Court. The transfer of Petitioner to a different custodial institution did not defeat this Court's jurisdiction. Subsequently, the caption was amended to reflect the name of the warden of the institution to which Petitioner was transferred. (Doc. 17.)
The Court concludes that it has in personam jurisdiction over the Respondent.
The Court has further concluded that it has subject matter jurisdiction to review Petitioner's claims pursuant to 28 U.S.C. § 2241. However, the scope of the Court's subject matter jurisdiction is more thoroughly discussed below in connection with Petitioner's specific claims.
II. Proceeding by a Motion to Dismiss
Title 28 U.S.C. § 2241 provides that writs of habeas corpus may be granted by a district court within its jurisdiction only to a prisoner whose custody is within enumerated categories, including but not limited to custody under the authority of the United States or custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(a), (c)(1), (3).
A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rules) is applicable to proceedings brought pursuant to § 2241. Habeas Rule 1(b). Habeas Rule 4 permits the filing of "an answer, motion, or other response," and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This gives the Court the flexibility and discretion initially to forego an answer in the interest of screening out frivolous applications and eliminating the burden that would be placed on a respondent by ordering an unnecessary answer. Advisory Committee Notes, 1976 Adoption. Rule 4 confers upon the Court broad discretion to take "other action the judge may order," including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Id.
The Supreme Court has characterized as erroneous the view that a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. See, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14 (1978). However, in light of the broad language of Rule 4, it has been held in this circuit that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present issues of failure to exhaust state remedies, O'Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990) (a motion to dismiss for failure to raise any issue of federal law, which was based on the insufficiency of the facts as alleged in the petition to justify relief as a matter of law, was evaluated under Rule 4); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural default in state court); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n. 12 (E.D.Cal. 1982) (a motion to dismiss for failure to exhaust state remedies is appropriately considered after receipt of evidence pursuant to Rule 7(a) to clarify whether or not the possible defect, not apparent on the face of the petition, might preclude a hearing on the merits, and after the trial court has determined that summary dismissal is inappropriate).
Analogously, a motion to dismiss is appropriate in a proceeding pursuant to 28 U.S.C. § 2241.
Here, Respondent's motion to dismiss is based on lack of subject matter jurisdiction. A federal court is a court of limited jurisdiction which has a continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). Respondent's motion is similar in procedural posture to a motion to dismiss for failure to exhaust state remedies or for state procedural default. Further, the motion does not raise material factual disputes. Finally, Respondent has not yet filed a formal answer.
The Court therefore exercises its discretion to review Respondent's motion pursuant to its authority under Rule 4.
Further, as the following analysis demonstrates, the Court will deny Respondent's motion to dismiss in part and will exercise its jurisdiction to consider Petitioner's contentions to the extent permissible under the standard of review applicable to a petition brought pursuant to 28 U.S.C. § 2241 to review the proceedings of a court-martial. The record before the Court is sufficient to permit a decision, there are no factual disputes concerning the contents of the record, and the case has been fully briefed.
The petition was filed on October 1, 2007, when Petitioner was confined at the United States Penitentiary at Atwater, California. Petitioner challenges his conviction by court-martial of murder pursuant to 10 U.S.C. § 918*fn2 rendered on December 13, 1990. Petitioner is serving a life sentence. (Pet. 2.)*fn3 Petitioner appealed the conviction to the Navy-Marine Corps Court of Military Review and then to the United States Court of Military Appeals. (Id.) No contention is made that the crime was not service-related.
Petitioner raises three grounds in the petition: 1) Lt. Col. Stone, a member of the military jury, had prejudicial conversations with other officers and a lawyer about Petitioner's case before the court martial proceedings, concealed them during voir dire, and thereby committed a fraud upon the court and denied Petitioner his rights pursuant to Article 25 of the Uniform Code of Military Justice (UCMJ) and 10 U.S.C. § 825; 2) the prosecution committed gross misconduct and thereby violated Petitioner's rights under the Due Process Clause of the Fourteenth Amendment; and 3) Petitioner's dishonorable discharge was an administrative act that violated 5 U.S.C. § 551 and 32 C.F.R. § 45.3, and therefore Respondent lacks jurisdiction over Petitioner; further, Petitioner is a "Title 10 U.S.C." military prisoner wrongfully held in federal prison pursuant to the authority of title 18. (Pet. 3-4.)
Respondent previously moved to dismiss the petition on the same grounds raised here, namely, that the Court lacks subject matter jurisdiction to review Petitioner's claims. (Doc. 9.) The motion was denied without prejudice because the record was inadequate to permit the Court to determine the motion. (Docs. 17, 3-5; 19, 1-2.)
Respondent briefly summarizes the facts of the offense as found in "[d]ocuments submitted with his petition." (Mot. 1.) No documents were attached to Petitioner's five-page petition, but the Court will assume that Respondent is referring to Petitioner's objections (doc. 18, filed August 18, 2008) to earlier findings and recommendations, which included a document entitled "ASSIGNMENT OF ERRORS AND BRIEF ON BEHALF OF APPELLANT," that was stamped received on December 4, 1991, by the United States Navy-Marine Corps Court of Military Review. (Doc. 18, 11-76.)
In the brief there are set forth "[u]ncontested [f]acts" pertinent to the charge, which concerned the premeditated murder of Mrs. Brenda Salomon on August 18, 1989. (Id. at 17.) Petitioner confessed to the killing, revealing that while at the Shipwreck Lounge, he encountered Salomon and then left the lounge. When Petitioner entered his truck, Salomon, who was very drunk, tapped on the window and asked Petitioner to take her out to get something to eat. Petitioner agreed and bought Salomon some fast food. When Salomon passed out several times and failed to tell Petitioner where she lived, Petitioner stopped at a telephone booth and told her to get out of his truck and call someone to come to pick her up. When she called him names, slapped him, and failed to leave the truck, he drove into a wooded area, stopped, and ordered her out of the truck. A physical altercation ensued, and Petitioner pulled Salomon out of the truck. When Salomon removed her shorts, taunted Petitioner, and attacked him as he tried to enter his truck, Petitioner became enraged, hit her repeatedly, retrieved his "Ninja To" sword from the truck, and struck Salomon so hard that the sword's handle detached from its blade. (Id. at 18, 21-23.) The blow severed her spinal cord and vertical arteries. (Id.)
Petitioner returned to the lounge after retrieving the sword and throwing Salomon's things out of the truck, and stayed there until closing time. The body was discovered in a wooded area on the Camp Lejeune Marine Corps base, and multiple items of corroborating evidence were found. (Id. at 17-18.)
IV. Jurisdiction to Review Petitioner's Conviction by Court-Martial and Scope of Review
The military justice system is independent of the federal court system; it has its own source in the Constitution and separate rules of procedure and doctrines of substantive law. Davis v. Marsh, 876 F.2d 1446, 1447 (9th Cir. 1989). A court-martial has jurisdiction to punish service members for "service-connected" offenses, and the findings and sentences of a court-martial are final and conclusive on all courts of the United States. 10 U.S.C. § 876; Schlesinger v. Councilman, 420 U.S. 738, 745 & n.10 (1975).
With the exception of the United States Supreme Court's limited certiorari jurisdiction, the acts of a court-martial, within the scope of its jurisdiction and duty, cannot be directly reviewed by civil courts. Instead, Congress has given the power of direct review to military entities and a specialized Court of Military Appeals instead of Article III courts. Schlesinger v. Councilman, 420 U.S. 738, ...