ORDER DENYING DEFENDANT BARRENCHEA'S PRO SE MOTION TO EXPUNGE Docket 433, 437
SAUNDRA BROWN ARMSTRONG, District Judge.
Miguel Angel Barrenechea ("Barrenechea") is a federal prisoner presently incarcerated at USP-Victorville, following his conviction and sentence by the Honorable Thelton E. Henderson in United States v. Cornejo, et al., Case No. C 92-403 MMC ("Cornejo"). This matter is now before the Court on Barrenechea's pro se "Motion to Expunge - Striking the Numbers 71 through 76 from the Presentence Report." Dkt. 433. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the motion without prejudice for the reasons set forth below.
In August 1992, the Government filed an indictment against Barrenechea, Rafael Cornejo ("Cornejo") and various others, charging them with conspiracy to distribute cocaine and other drug trafficking-related charges. Cornejo, Dkt. 14. The action was assigned to the Honorable Thelton E. Henderson. While awaiting trial, Cornejo and Barrenechea were detained at FCI-Dublin. Through a confidential informant, the Government learned that Cornejo and Barrenechea, along with Charles Robert Hardin ("Hardin") and Kenneth Edward Elliott ("Elliott"), were allegedly plotting an escape from detention. As a result, on April 28, 1994, the Grand Jury returned an Indictment against Cornejo, Barrenechea, Hardin and Elliott, charging them with conspiring to commit an escape. The new "escape" case was assigned to this Court, which, on March 5, 1996, granted the defendants' motion to dismiss based on prosecutorial misconduct. See United States v. Cornejo, et al., No. C 94-206 SBA, 1996 WL 107271 (N.D. Cal. 1996).
Shortly after this case was terminated, Barrenechea was tried and convicted, and later sentenced on April 15, 1996 in the drug trafficking action before Judge Henderson. Cornejo, Dkt. 1739. At sentencing, Barrenechea, through counsel, sought to strike paragraphs 71 through 76 of the Presentence Report ("PSR"), which summarized the escape charges. Cornejo, Dkt. 2370 at 1 n.1. Judge Henderson stated that he was not considering the information contained within those paragraphs and denied the motion, and imposed a life sentence. Id . On August 18, 1998, Barrenechea's conviction and sentence were upheld by the Ninth Circuit Court of Appeals. See United States v. Avila , 153 F.3d 931 (9th Cir. 1998), amended by 170 F.3d 863 (9th Cir. 1999).
On November 29, 2010, Barrenchea filed a pro se "Motion to Expunge - Striking the Numbers 71 through 76 from the Presentence Report." Cornejo, Dkt. 2369. In his motion, Barrenechea alleged that, in violation of the Privacy Act, the Bureau of Prisons ("BOP") is maintaining erroneous information relating to the escape charges in his prisoner central file, and that such information was being used to impose restrictions on the terms of his confinement. On January 5, 2011, Judge Maxine Chesney, the judge to whom the drug trafficking case was reassigned from Judge Henderson, denied the motion. Id . Dkt. 2370. Among other things, she found a challenge to the conditions of Barrenechea's confinement could not be brought in the underlying criminal case and instead must be brought in a separate action. Id.
In the instant action, Barrenechea has now filed a pro se motion which seeks to expunge paragraphs 71 through 76 of the PSR prepared in connection with his drug trafficking case. Like the motion filed in the drug trafficking case, Barrenechea again alleges that, in violation of the Privacy Act, such information is being used by the BOP to impose restrictions on him at USP-Victorville. Dkt. 433 at 3.
The threshold issue before the Court is whether Barrenechea's request is properly before the Court. It is not. Barrenechea's motion is essentially the same as the one which he filed in his drug trafficking case that was denied by Judge Chesney. He has presented no compelling reasons to reconsider her ruling. That notwithstanding, the Court finds that Barrenechea cannot challenge the conditions of his confinement through filing a motion in a criminal action which has long been dismissed. Moreover, the relief sought by Barrenechea is directed to the BOP, which is not nor has ever been a party to this action. Thus, the Court finds that Barrenechea's motion is improper and must therefore be denied.
For the benefit of Barrenechea, the Court notes that to the extent that he desires to pursue his putative claims against the BOP, the proper course of action is to file a new civil action. See Preiser v. Rodriguez , 411 U.S. 475, 498-99 (1973) (holding that a civil suit is proper remedy for challenge to conditions of confinement). The Privacy Act provides for venue in any of the following districts: (1) the district where the plaintiff resides or has his principal place of business; (2) the district where the records at issue are located; or (3) the District of Columbia. See 5 U.S.C. § 552a(g)(5). Given that Barrenechea is incarcerated in USP-Victorville, coupled with the fact that the challenged records are alleged to be located there, the Court notes that the Central District of California, not the Northern District, appears to be the appropriate venue for Barrenechea's Privacy Act claims. See Pickard v. Dept. of Justice, No. C 10-05253 LB, 2011 WL 2199297, *2 (N.D. Cal. June 7, 2011) (finding that Privacy Act claims filed by federal prisoner were properly venued in the District of his incarceration).
For the reasons stated above,
IT IS HEREBY ORDERED THAT Defendant Barrenechea's Motion Seeking Relief Along with Monetary Damages for Violation of the Privacy Act by the Federal Bureau of Prisons is DENIED without prejudice to filing his claim as a new action in a court of competent ...