United States District Court, S.D. California
ORDER CONSTRUING PLEADING AS PETITION FOR WRIT OF
HABEAS CORPUS; GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS; [Doc. No. 2] SUMMARILY DISMISSING PETITION [Doc.
MICHAEL M. ANELLO, United States District Judge
Jonathan Lopez, proceeding pro se, has filed a
pleading styled as a motion to vacate, set aside, or correct
his sentenced pursuant to 28 U.S.C. § 2255, challenging
a sentence imposed on April 15, 2014 by the United States
Marine Corps in a general court-martial proceeding.
See Doc. No. 1. For the reasons set forth below, the
Court construes Lopez's pleading as a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241,
GRANTS Lopez's motion for leave to
proceed in forma pauperis (“IFP”), and
summarily DISMISSES his petition.
was convicted of rape and assault consummated by a battery,
in violation of Articles 120 and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 928. See
United States v. Lopez, No. NMCCA 201400289, 2016 CCA
LEXIS 113, at *1 (N-M Ct. Crim. App. Feb. 29, 2016). Lopez
was sentenced to a term of seven years' confinement, a
reduction in pay grade, forfeiture of all pay and allowances,
and a dishonorable discharge. Id. According to
Lopez's pleading, he is currently confined at the Naval
Consolidated Brig at Marine Corps Air Station
(“MCAS”) Miramar, San Diego,
California. Lopez has instituted the current
proceeding challenging his conviction and sentence, alleging:
(1) insufficiency of the evidence to support his convictions,
particularly in light of the complaining witness's
contradictory statements and trial testimony; (2) ineffective
assistance of defense trial counsel; (4) legal error based on
the exclusion of evidence under Military Rule of Evidence
412; and (5) failure to receive a fair trial and partial
clemency due to political pressure and unlawful command
influence. See Doc. No. 1.
has styled his pleading as a motion to vacate pursuant to
Title 28, United States Code, section 2255. In pertinent
part, the statute provides:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, . . . or is
otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a) (emphasis added). Because this Court
did not impose the challenged sentence, Lopez may not seek
relief in this Court under Section 2255. As one circuit court
General courts-martial are ad hoc proceedings which dissolve
after the purpose for which they were convened has been
resolved. As a result, there is not a sentencing court in
which a military prisoner may bring a § 2255 motion.
Moreover, neither the Uniform Code of Military Justice nor
the Manual for Courts-Martial provides for collateral review
within the military courts.
Witham v. United States, 355 F.3d 501, 505 (6th Cir.
2004) (internal citations omitted).
“military prisoners seeking to collaterally attack
their convictions may do so” by filing a petition for
writ of habeas corpus pursuant to Section 2241. Ehlers v.
United States, No. 11cv882 BTM (POR), 2011 U.S. Dist.
LEXIS 115428, at *3-4 (S.D. Cal. Oct. 6, 2011) (citing
Prost v. Anderson, 636 F.3d 578, 588 (10th Cir.
2011) (“[R]esort to § 2241 is the norm rather than
the exception when a military prisoner seeks to challenge the
results of his [court-martial].”); Witham,
supra, 355 F.3d at 505 (same)). As such, the Court
construes Plaintiff's pleading as a habeas petition
brought pursuant to Section 2241.
than pay the required $5.00 filing fee to institute this
action, Lopez seeks leave of Court to proceed IFP.
See Doc. No. 2. As such, he must supply “the
affidavit required by 28 U.S.C. § 1915, and a
certificate from the warden or other appropriate officer of
the place of confinement showing the amount of money or
securities that the petitioner has in any account in the
institution.” See Rule 3(a), 28 U.S.C. foll.
§ 2254.Lopez has not provided the required
certificate. Nevertheless, in the interest of judicial
efficiency, the Court GRANTS Lopez's
request to proceed IFP based on his sworn statement that he
has been unable to procure a copy of the certificate, and is
unable to pay the filing fee required to initiate this
determined that Lopez may proceed IFP, the Court must
preliminarily review his petition. “If it plainly
appears from the face of the petition . . . that the
petitioner is not entitled to relief, ” the Court must
dismiss the petition. Rule 4, 28 U.S.C. foll. § 2254
Cases; see also Hendricks v. Vasquez, 908 F.2d 490
(9th Cir. 1990).
Lopez's petition is subject to summary dismissal on
several grounds. First, Lopez has sued the United States
government. However, the proper respondent to a petition
brought under Section 2241 is the person who has custody of
the petitioner. Rumsfeld v. Padilla, 542 U.S. 426,
434 (2004) (citing 28 U.S.C. §§ 2242 and 2243).
This is generally the warden of the facility where the
prisoner is being held - in this case, it would presumably be
the commanding officer of the Brig at MCAS Miramar.
Id. at 435.
the Court would ordinarily permit amendment or substitution
of the proper respondent, the petition is plainly subject to
dismissal on substantive grounds. Although the Court
generally has jurisdiction to review a petition challenging a
military conviction, the scope of review of is very narrow.
See Burns v. Wilson, 346 U.S. 137, 139 (1953). As
relevant here, the Court's review is limited to only
those claims raised in the military courts, but not given
“full and fair consideration” by those courts.
Id. at 142; see also Broussard v. Patton,
466 F.2d 816, 818 (9th Cir. 1972) (holding that “habeas
corpus proceedings involving military convictions are limited
to determining whether the court-martial had jurisdiction of
the person accused and the offense charged and ...