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Lopez v. United States

United States District Court, S.D. California

February 27, 2018



          MICHAEL M. ANELLO, United States District Judge

         Plaintiff 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.


         Lopez 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.[1] 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.

         Lopez 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 has explained:

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).

         However, “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.

         Rather 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.[2]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 action.

         Having 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).

         Here, 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.

         While 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 ...

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