LUCY H. KOH, District Judge.
Before the Court is respondent's motion to dismiss petitioner's pro se habeas petition. Also before the Court is petitioner's motion to transfer this petition to the Middle District of Pennsylvania and petitioner's request to be appointed counsel.
For the reasons stated below, respondent's motion to dismiss is
Petitioner Roberta Ronique Bell ("petitioner") is a federal prisoner incarcerated in Dublin, California. Petitioner filed a pro se habeas petition ("Petition") under 28 U.S.C. § 2241 ("Section 2241"), and argued she is actually innocent of her 1996 conviction for tampering with a witness, Doreen Proctor ("Proctor"), by murder and by use of physical force and threats.
Before filing the Petition, petitioner attempted to pursue relief in the United States District Court for the Middle District of Pennsylvania (the "Middle District of Pennsylvania"). The Petition attached the Middle District of Pennsylvania's order denying relief and corresponding memorandum (collectively, "Pennsylvania 60(b) Order" or "M.D. Pa. 60(b) Order"). See Dkt. No. 1 at Ex. A. Because the Pennsylvania 60(b) Order provided a detailed factual and procedural summary, because neither petitioner nor respondent challenged the accuracy of this summary, and because the proceedings in the Middle District of Pennsylvania are relevant to the Court's analysis, the Court will rely on the Pennsylvania 60(b) Order for much of the relevant background.
The following facts, given in chronological order, are undisputed unless otherwise indicated.
Proctor contacted the Carlisle Police Department in 1990, and stated she was interested in assisting that department in investigating the drug trade in the Carlisle, Pennsylvania area. See Dkt. No. 17 ("MTD" or "Dismissal Motion"), Exs. B-C ("Petitioner Transcript") at 53:22-54:14. Proctor began working as an informant in 1991. Id. at 54:15-21; MTD at 1. Proctor worked primarily with Detective David Fones, a narcotics detective in the Carlisle Police Department ("Detective Fones") who was also assigned to a Tri-County Drug Task Force ("Task Force"). Pet'r Tr. at 45:22-23, 53:22-54:2. Respondent stated that Proctor worked as an informant for the Task Force, rather than the Carlisle Police Department. MTD at 1.
The Task Force investigated drug activity in Adams, Cumberland, and Perry Counties, Pennsylvania. See MTD, Ex. D ("Tyler Transcript") at 354:14-15. The Task Force was made up of at least the members of police departments from those counties. See id. at 257:5-9. Some testimony suggested that the Task Force included state and federal investigators, see Pet'r Tr. at 44:6-8, but this testimony conflicts with statements that the Task Force consisted of local investigators, see Tyler Tr. at 257:5-9.
The Pennsylvania Attorney General's Office had to approve Proctor wearing a wire for her work as an informant. See MTD, Ex. D ("Tyler Transcript") at 81:18-82:8, 265:19-266:5. Agent Ron Diller of the Pennsylvania Attorney General's Office ("Agent Diller") met with Proctor to gather information needed to apply for her to wear a wire. See id. Agent Diller was also a coordinator for the Task Force. See id.
During her informant work, Proctor made four controlled purchases of cocaine. Pet'r Tr. at 54:15-21. Proctor testified in preliminary hearings against the persons from whom Proctor had purchased cocaine. Id. at 54:24-55:2. Respondent explained that Proctor had provided, and was providing, information about a drug trafficking operation run by David Tyler ("Tyler Operation"). MTD. However, this conflicts with testimony that Proctor was no longer performing undercover work or providing information to the Task Force. See Tyler Tr. at 89:7-10; 131:19-22; 132:15-22. Petitioner was involved in the Tyler Operation, and was David Tyler's girlfriend. MTD at 1.
Proctor was killed in Pennsylvania in 1992, the morning she was scheduled to testify in a state court drug trial against David Tyler. M.D. Pa. 60(b) Order at 2. Petitioner drove Proctor to the place that she was killed and fired the first shot into Proctor's chest. MTD at 2. Willie Tyler, David Tyler's brother, then shot Proctor in the head. Id.
Petitioner, David Tyler, Willie Tyler, Jerome King, David King, and Mary Hodge were arrested and charged under state law with Proctor's murder. M.D. Pa. 60(b) Order at 2. Petitioner was acquitted in 1993. Id.
After petitioner was acquitted of state charges, federal authorities investigated Proctor's killing and filed federal charges against petitioner and Willie Tyler. Id. Petitioner was indicted on five counts and convicted of four. MTD at 3. Relevant here are two of the four counts on which petitioner was convicted: her convictions for tampering with a witness by murder in violation of 18 U.S.C. § 1512(a)(1)(A) and (C) and for tampering with a witness by use of physical force and threats in violation of 18 U.S.C. § 1512(b)(1)-(3) (together, the "Tampering Counts"). The Tampering Counts envisioned two means by which the federal element could be fulfilled: if the defendant tampered with a witness either to prevent the witness from testifying at an official federal proceeding, or to prevent the witness from communicating with a federal law enforcement officer. The indictment alleged, in support of the Tampering Counts, that petitioner intended both to prevent Proctor from testifying at official proceedings (the "federal proceeding charge"), and to prevent Proctor from communicating to a federal law enforcement officer (the "communication charge"). M.D. Pa. 60(b) Order at 5. Thus, each of petitioner's convictions on the Tampering Counts is supported both by a federal proceeding charge and by a communication charge.
The case against petitioner was heard by Judge Caldwell, United States District Judge for the Middle District of Pennsylvania ("Judge Caldwell"). See Dkt. No. 16. At trial, the government introduced evidence which respondent contended shows Proctor would have communicated with a federal officer. MTD at 10-12 (discussing Pet'r. Tr.). A jury sentenced petitioner to 10 years' imprisonment for tampering with a witness by force and threats, and to life imprisonment for tampering with a witness by murder.
In 1998, petitioner moved to vacate or set aside her sentence under 28 U.S.C. § 2255 ("Section 2255"). M.D. Pa. 60(b) Order at 3. Petitioner argued ineffective assistance of counsel, double jeopardy, a due process violation based on evidence tampering, and vindictive prosecution. Id. at 4. The Middle District of Pennsylvania denied petitioner's Section 2255 motion, and petitioner did not appeal. Id.
In June 2016, petitioner sought permission from the Third Circuit to file a second Section 2255 motion, which challenged her firearm conviction pursuant to a 2015 decision by the United States Supreme Court. Id. That matter has been stayed since June 2016 and appears to still be pending in the Third Circuit. See In re Roberta Ronique Bell, No. 16-2758 (3d Cir. filed June 13, 2016).
In July 2017, petitioner moved to reopen ("60(b) Motion") the habeas motion she had filed in 1998. See generally, Mot. for Relief from J., United States v. Bell, No. 95-cr-0163-SHP (M.D. Pa. Jul. 13, 2017). In the 60(b) Motion, petitioner argued she was entitled to relief from judgment in light of new United States Supreme Court decisions, Fowler v. United States, 563 U.S. 668 (2011) ("Fowler"), and Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) ("Arthur Andersen"). Relevant here, petitioner contended that Fowler held the "witness murder subsection in § 1512(a)(1)(C) required that there be a reasonable likelihood that a witness's murder was intended to prevent communication with a federal law enforcement officer or judge," 60(b) Motion at 5; that petitioner was "being detained for conduct that has been rendered non-criminal pursuant to the Supreme Court's interpretation of 18 U.S.C. § 1512," id. at 9; that petitioner's alleged co-defendant Willie Tyler had raised these same issues and been granted a new trial, id. at 4-6; and that petitioner should be given the opportunity to present the same claims, id. at 9.
In response to petitioner's 60(b) Motion ("60(b) Opposition"), the government argued petitioner had failed to show "extraordinary circumstances" to reopen her Section 2255 Motion, as required by the Third Circuit. See Gov't Br. in Opp'n to Defs.' Mot. for Relief from J. at 10, United States v. Bell, No. 95-cr-0163-SHP (M.D. Pa. Aug. 10, 2017). The government explained that, before the 60(b) Motion could be granted, the Third Circuit required petitioner to show that "`without such relief, an extreme and unexpected hardship would occur.'" Id. (citations omitted). The government argued that "[i]n the present case, there is a tried and true remedy available for Bell to pursue. Thus, Bell is unable to demonstrate how an unexpected hardship would occur if this Court were to deny her Motion. . . ." Id. at 11. According to the government, the "available" "remedy" was a Section 2241 petition in the Northern District of California, where petitioner is confined. See id. at 2 ("Bell's actual innocence claim is cognizable pursuant to the safety-valve provision of § 2255(e) . . . the appropriate avenue is for Bell to file her petition under 28 U.S.C. § 2241 in the district of her confinement. Thus, the Court should . . . summarily deny Bell's motion and direct her to file a proper petition for relief pursuant to § 2241 in the Northern District of California."), 9-10 (arguing a defendant situated "[l]ike Bell" had "brought a successive § 2255 petition," and the Third Circuit had concluded that defendant should pursue § 2241 relief), 11 ("Here, there are no gaps in the current system. Bell has a cognizable claim under § 2241"), 13 ("Bell's habeas corpus claim is cognizable under the safety valve provision of § 2255(e) and can be raised pursuant to § 2241.").
The Middle District of Pennsylvania denied the 60(b) Motion. See generally, M.D. Pa. 60(b) Order. It stated it "d[id] not reach the merits of Bell's claims because we agree with the government that Bell must pursue them in a petition under 28 U.S.C. § 2241." Id. at 2. The court relied on the government's argument that because petitioner could pursue a Section 2241 petition in the Northern District of California, she could not show hardship:
Id. at 10-11. The court also found there "is no issue whether a federal court in California would entertain" a petition filed by petitioner under Section 2241, because "Ninth Circuit law would also permit Bell to file a 2241 petition in similar circumstances." Id. at 12.
As noted, Willie Tyler was also charged under state law for Proctor's murder. Willie Tyler was convicted of witness intimidation in violation of state law and served two years for this offense. MTD at 4. Following Willie Tyler's release, federal authorities charged him under federal law. Id. His case was heard by Judge Caldwell. See Dkt. No. 16 at 3. A jury convicted Willie Tyler of the same offenses as petitioner. MTD at 4.
Willie Tyler moved for post-conviction relief under Arthur Andersen and Fowler. Id. The Middle District of Pennsylvania initially denied relief, but on appeal the Third Circuit concluded that "there [was] not enough in the record to negate Tyler's claim that he is actually innocent of tampering with a witness involved in an official proceeding," and that "there [was] enough evidence to support Tyler's claim that he is actually innocent of violating § 1512's investigation-related communication provisions." United States v. Tyler, 732 F.3d 241, 251, 252 (3d Cir. 2013). The Third Circuit remanded Willie Tyler's case to the Middle District of Pennsylvania. See MTD at 6. On remand, the government conceded that Willie Tyler was actually innocent of the federal proceeding charge that underlies the Tampering Counts. Id. That left only the communication charge to support his convictions.
Willie Tyler's case was reassigned to Judge Jones, United States District Judge for the Middle District of Pennsylvania ("Judge Jones"). See Dkt. No. 16 at 3. In a new trial in 2017 ("Willie Tyler's retrial"), a jury convicted Willie Tyler of the Tampering Counts. However, Judge Jones granted Willie Tyler's post-trial motion for judgment of acquittal. See MTD at 6. Judge Jones concluded that the government had not shown Willie Tyler intended to prevent Proctor from communicating with federal law enforcement; the government's direct evidence supported only the conclusion that Proctor had been killed to prevent her from testifying; and only speculative and circumstantial evidence supported the conclusion that Willie Tyler had intended to prevent Proctor from communicating with federal law enforcement. See Mem. & Order at 18-26, United States v. Tyler, No. 96-cr-0106-JEJ (M.D. Pa. Feb. 14, 2018). Judge Jones also held that, because Willie Tyler knew the identity of the officers to whom Proctor reported, the Fowler standard was too low a burden for the government. Id. at 29-37. Because Willie Tyler knew the officers' identity, Judge Jones held that the government had to prove beyond a reasonable doubt that those officers worked for the federal government. Id. at 34. Because the government had not done so, Judge Jones held Willie Proctor was entitled to have his conviction vacated. Id. at 37.
The government has appealed Judge Jones's decision to vacate Willie Tyler's conviction. MTD at 6. That appeal remains pending. See Order Staying Appeal, United States v. Tyler, No. 18-1319 (3d Cir. July 31, 2018). While that appeal is pending, Willie Tyler has been granted release. See Order, United States v. Tyler, No. 96-cr-0106-JEJ (M.D. Pa. Feb. 20, 2018).
After the Middle District of Pennsylvania denied petitioner's 60(b) Motion, she filed the Petition in this Court pursuant to Section 2241. See Petition. Petitioner claimed she is actually innocent of the 1996 convictions for the Tampering Counts. See id. at 7-8. Petitioner argued that Fowler and Arthur Andersen rendered her conduct noncriminal and thus, she is factually innocent. See id. Petitioner also summarized the proceedings in the Middle District of Pennsylvania, and how she came to be before this Court. See id. at 6. Petitioner asked the Court to appoint counsel, grant a hearing, vacate her conviction and sentence, and grant a new trial. Id. at 9. Petitioner attached the Pennsylvania 60(b) Order to her Petition.
The Court concluded petitioner stated a cognizable claim and ordered respondent to show cause why the Petition should not be granted. See Dkt. No. 9 at 2. Respondent moved to dismiss for lack of jurisdiction ("Dismissal Motion" or "MTD"). See MTD at 1. Petitioner opposed ("Opposition"),
Separate from this motions practice, the Court received two letters ("Letters") that ask the Court to appoint counsel for petitioner. See Dkt. Nos. 12, 16. The first of the Letters is from the Federal Public Defender for the Northern District of California, Steven Kalar ("FPD Kalar"). See Dkt. No. 12. FPD Kalar pointed to petitioner's unique circumstances — that intervening law may call petitioner's conviction into question, that her co-defendant Willie Tyler raised the same grounds for relief in a habeas petition and had his conviction and life sentence overturned, and that petitioner has CJA counsel in the Middle District of Pennsylvania who is already familiar with her case — as justifications for appointing counsel here. See id. FPD Kalar stated that, if the Court does not wish to appoint petitioner's current CJA counsel, FPD Kalar would take petitioner's case.
The second of the Letters is from Judge Sylvia Rambo, a United States District Judge for the Middle District of Pennsylvania ("Judge Rambo"). See Dkt. No. 16. Judge Rambo explains that petitioner's case has been reassigned to her from the now-retired Judge Caldwell. See id. at 5. Judge Rambo also noted petitioner's unique circumstances — the change in the law, the acquittal of petitioner's co-defendant, and the existing CJA counsel — and "suggest[ed] that counsel be appointed" because "it seems inequitable to not provide the same level of legal expertise to separately indicted co-conspirators." Id. at 5.
Before the Court turns to the Dismissal Motion, it is useful to summarize the law that lets the Petition to be brought in the Northern District of California, and the change in the law on which the Petition is based.
Generally, a prisoner in custody under sentence of a federal court who wishes to attack collaterally the validity of his conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to Section 2255 in the court which imposed the sentence. See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988) (explaining that convictions are generally attacked with a Section 2255 motion), cert. denied, 488 U.S. 982 (1988). Only the sentencing court has jurisdiction. See id. at 1163. However, there is an exception to the general bar against using Section 2241 to collaterally attack a conviction or sentence: a federal prisoner may seek relief under Section 2241 if he can show the remedy available under Section 2255 is "`inadequate or ineffective to test the validity of his detention.'" United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997) (quoting 28 U.S.C. § 2255). This exception is sometimes referred to as the "escape hatch" to Section 2255. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). The Ninth Circuit has recognized the escape hatch is a narrow exception. See id.
A petitioner who attempts to raise a claim of actual innocence in a Section 2241 petition under the escape hatch ("escape hatch petition") will be able to show that the Section 2255 remedy is inadequate or ineffective only if she "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006); see, e.g., Alaimalo v. United States, 645 F.3d 1042, 1047-48 (9th Cir. 2011) (holding that because "actual innocence" claim was unavailable until Ninth Circuit overruled prior law, after completion of petitioner's direct appeal and denial of his Section 2255 motion, petitioner did not have an unobstructed chance to present his innocence claim); Stephens, 464 F.3d at 898-99 (finding that petitioner was denied an "unobstructed procedural shot" where the claim arose after his Section 2255 motion was denied, but that petitioner failed to satisfy the actual innocence requirement set forth in Bousley v. United States, 523 U.S. 614 (1998)); Ivy v. Pontesso, 328 F.3d 1057, 1060-61 (9th Cir. 2003) (finding petitioner was not denied an "unobstructed procedural opportunity" to present his actual innocence claim in his prior Section 2255 petitions because it was factually and legally available to him since the day he was indicted). Here, petitioner must show that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted" her. Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012).
The Ninth Circuit has held that, before proceeding to the merits of an escape hatch petition, a district court should resolve "the threshold question" of whether the petition was properly brought under Section 2241, or whether it should be construed as a motion under Section 2255. See Muth, 676 F.3d at 818. However, the Ninth Circuit also recognized this question may arise after a case has been transferred from another district. In that situation, "[u]nder the law of the case doctrine, the transferee court should not revisit the transferor court's characterization of the petition unless that characterization was `clearly erroneous' or would result in `manifest injustice.'" Id. The Ninth Circuit refused to "require
Relevant here are petitioner's convictions for tampering with a witness by murder and for tampering with a witness by use of physical force and threats (together, the "Tampering Counts").
At the time of petitioner's conviction, the relevant statute provided:
18 U.S.C. § 1512(a)(1)(A), (C); § 1512(b)(1)-(3) (1994).
At the time of petitioner's conviction, the phrase "official proceeding" was defined in another statute within the same chapter as follows:
18 U.S.C. § 1515(a)(1) (1994).
Thus, the statute could be violated: (1) if the defendant intended to prevent the victim from testifying at one of the enumerated federal proceedings, which "need not be pending or about to be instituted at the time of the offense," 18 U.S.C. § 1512(e)(1) ("subpart (e)(1)"), or (2) if the defendant intended to prevent the victim from communicating with a federal law enforcement officer. These elements make the crime a federal offense, as opposed to one within the purview of a state. See Fowler, 563 U.S. at 675 (explaining why the scope of the statute must be limited).
Following petitioner's conviction, the United States Supreme Court clarified the nexus that was required between a defendant's conduct and a particular proceeding. See Arthur Andersen, 544 U.S. at 707-08. In Arthur Andersen, the government argued that subpart (e)(1) meant the government need not show any nexus at all. See id. at 707. The Court rejected this argument:
Id. at 707-08. The Court held that the government must show "a `nexus' between the obstructive act and the proceeding," because "`if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding,' . . ., `he lacks the requisite intent to obstruct.'" Id. at 708 (citations omitted).
The Third Circuit applied Arthur Andersen in considering Willie Tyler's appeal of the district court's initial decision on his habeas petition. See Tyler, 732 F.3d at 249-51. The Third Circuit rejected the government's argument, and the district court's conclusion, that Willie Tyler's consciousness of wrongdoing was enough to fulfill the statute, without any nexus to a particular federal proceeding. See id. at 249. Instead, the Third Circuit relied on Arthur Andersen to hold that a defendant must have a particular federal proceeding in mind before he may be found guilty of a Tampering Count. See id. at 249-50; accord Valenzuela Gallardo v. Lynch, 818 F.3d 808, 835 (9th Cir. 2016) ("although the government must still connect the obstructive act to an official proceeding under § 1512(b)(1), . . . the nexus does not have to be to an ongoing proceeding. Rather, it requires proof under § 1512(b)(1) of a foreseeable or contemplated proceeding.") (citing Arthur Andersen, 544 U.S. at 707-08). In Willie Tyler's case, the Third Circuit found that the only particular proceeding Tyler envisioned was David Tyler's state court drug trial. Because "there was no federal proceeding contemplated at the time of Proctor's murder," Willie Tyler could be actually innocent of the Tampering Counts to the extent they were predicated on a federal proceeding charge. Tyler, 732 F.3d at 250-51.
Here, respondent has conceded that petitioner is actually innocent of the federal proceeding charge under Arthur Andersen. See MTD at 9 ("The Government acknowledges that, based on Arthur Andersen, Bell is actually innocent of the official-proceeding charge."). Therefore, the Court need not address the federal proceeding charge further.
Petitioner's conviction on the Tampering Counts was supported in part by the charge that petitioner killed Proctor in order to prevent Proctor from communicating with federal law enforcement. When petitioner was convicted, the Third Circuit only required the government to prove "that the defendant believed that [the witness]
In Fowler, the United States Supreme Court considered what the Tampering Counts require "when a defendant (1) kills a victim, (2) with an intent (a) to prevent a communication (b) about the commission or possible commission of a federal offense but (c)
Because at the time of petitioner's conviction the government only needed to show the witness "might" communicate with the federal authorities and now the government must show there is "a reasonable likelihood" the witness would communicate with federal authorities, the government's burden is higher now than it was at petitioner's trial.
In the Petition, petitioner argued the government's evidence was insufficient to satisfy its higher Fowler burden. Pet. at 6. Notably, petitioner did not challenge the jury's conclusion that she murdered Proctor, or that the murder was committed with "the relevant broad indefinite intent, namely, the intent to prevent the victim from communicating with (unspecified) law enforcement officers." Fowler, 563 U.S. at 674. Instead, petitioner challenged whether the government was able to show that her witness tampering fell within "the primarily federal area that Congress had in mind" as opposed to "purely state investigations and proceedings." Id. at 675.
Respondent moved to dismiss the Petition for lack of jurisdiction. See generally, MTD. Respondent explained that the Court has jurisdiction only if petitioner comes within the escape hatch of Section 2255(e). See id. at 8 (citing Stephens, 464 F.3d at 898); see also supra II.A (providing an overview of escape hatch petitions). As explained above, the escape hatch of Section 2255(e) is an exception to the general bar against using Section 2241 to collaterally attack a conviction or sentence, and is available to a petitioner who "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Stephens, 464 F.3d at 898. Without providing argument or citing authority that supports its contention, respondent assumed that because jurisdiction is not invoked unless petitioner falls within the escape hatch, petitioner must prove actual innocence to invoke jurisdiction. See MTD at 10 ("
The Court disagrees with respondent for two reasons.
The first reason the Court rejects respondent's proposed burden is that the Ninth Circuit has not expressly required a petitioner to satisfy such a high burden at the dismissal stage. Respondent relied on two Ninth Circuit cases — Stephens and Lorentsen — for its contention that petitioner must meet her ultimate burden at the dismissal stage. See MTD at 8 (citing Stephens, 464 F.3d at 899; Lorentsen, 223 F.3d at 956). However, only Stephens appears to have applied a high burden for jurisdiction to be invoked, and even that case did not expressly require the petitioner to prove actual innocence by a preponderance of the evidence in order to have his escape hatch petition heard. Lorentsen and other Ninth Circuit cases require a lesser showing.
In Stephens, the petitioner brought an escape hatch petition and contended that he was actually innocent of his conviction based on an intervening change in the law. See 464 F.3d at 898. The Ninth Circuit observed that the change in the law was "not, by itself, a claim of actual innocence. Rather, it is a claim that the jury has not been" properly instructed. Id. at 899. Because "the mere fact of an improper instruction is not sufficient to meet the test for actual innocence," the court examined the evidence against the petitioner. See id. It concluded that the evidence against the petitioner "was sufficiently strong that we cannot conclude that it is more likely than not that no reasonable juror, properly instructed as to the elements of the crime, would have found him guilty." Id. (affirming district court's dismissal). While this echoes what a petitioner must ultimately prove to prevail on an escape hatch petition, the Ninth Circuit did not expressly state that a petitioner must prove actual innocence by a preponderance of the evidence in order to bring the petition See generally id. In fact, the Ninth Circuit stated that "a § 2241 petition
In Lorentson, the Ninth Circuit held that the district court lacked jurisdiction over an escape hatch petition. See 223 F.3d 950. However, the court did not so hold because petitioner had failed to meet the ultimate burden of proof. Instead, the court held jurisdiction had not been invoked because the petitioner had failed to produce any evidence at all. See id. at 955-56 ("Finally, at no time during these proceedings has Petitioner submitted a declaration (or any other evidence) suggesting that he did not drive the pickup truck to the methamphetamine lab on the day of his arrest or that the shotgun was not in the truck when he drove it to the methamphetamine lab that day."). Thus, respondent is incorrect in suggesting that Lorentsen requires petitioner to meet her ultimate burden of proof to invoke jurisdiction. See MTD at 21. At most, Lorentsen requires petitioner to make some showing in support of her actual innocence.
Like Lorentsen, the Ninth Circuit's other decisions appear to require only some evidence in support of actual innocence for jurisdiction to attach to an escape hatch petition, not to meet the ultimate burden. Where the court has held that jurisdiction was invoked, the petitioner made only "
The second reason the Court rejects the burden respondent puts forward is that this burden conflicts with what petitioners must show in analogous circumstances. Where, as here, there is a substantial overlap between substantive and jurisdictional analyses, the Ninth Circuit directs district courts to require a lesser burden of proof.
The Ninth Circuit has reviewed dismissal orders "where issues of jurisdiction and substance are intertwined." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). In such a circumstance, a court cannot evaluate jurisdictional arguments without "resol[ving] . . . factual issues which also go to the merits," and so "a resolution of the jurisdictional facts is akin to a decision on the merits." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). Because merits-related questions must be answered in addressing such a motion, the court places the burden of proof on the moving party, rather than the non-moving party. See Roberts, 812 F.2d at 1177 (citing the standard under Fed. R. Civ. P. 12(b)(6)); Augustine, 704 F.2d at 1077 (citing the standard under Fed. R. Civ. P. 56).
Here, as in Roberts and Augustine, jurisdictional and substantive issues are intertwined: respondent argued that petitioner cannot prove actual innocence based on the facts adduced at her trial, and that she cannot invoke jurisdiction because she cannot prove actual innocence. See MTD at 9-12. Because jurisdictional and substantive issues overlap in the Petition, respondent's position that petitioner must satisfy her ultimate burden of proof at this stage, conflicts with Ninth Circuit precedent applying a lesser standard.
This raises the question of what standard the Court should apply in evaluating respondent's Dismissal Motion. The Ninth Circuit has articulated two different standards a district court must apply when jurisdiction and substance overlap. In Roberts, the court held that if jurisdiction and substance are intertwined, then "[d]ismissal is . . . appropriate where `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" 812 F.2d at 1177 (applying this burden to a Section 2241 petition) (citations omitted). The court analogized this standard to that used in evaluating a dismissal motion brought under Federal Rule of Civil Procedure 12(b)(6). See id. However, in Augustine, the Ninth Circuit directed district courts to "employ the standard applicable to a motion for summary judgment" when ruling on a jurisdictional motion that overlapped with the merits. 704 F.2d at 1077.
Although respondent imposes too high a burden, the Ninth Circuit appears to require some factual showing in order to invoke jurisdiction over an escape hatch petition. See supra III.A. This counsels in favor of applying a summary judgment standard here, because that standard also would require petitioner to produce some facts from which a jury could find in her favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (stating the burdens on each party in a summary judgment motion). Moreover, the Ninth Circuit's most recent case dealing with an overlap of jurisdiction and substance directed courts to apply the summary judgment standard. See Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014) (quoting Augustine, 704 F.2d at 1077). Because this is the Ninth Circuit's most recent pronouncement of the standard that should be applied where jurisdiction and substance overlap, and because this standard appears to comport with the burden the Ninth Circuit has placed on petitioners to invoke jurisdiction over an escape hatch petition, see supra III.A, the Court will apply the summary judgment standard here.
Accordingly, respondent will only prevail on the Dismissal Motion "if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Augustine, 704 F.2d at 1077. The Court construes the facts in the light most favorable to petitioner. See Young, 769 F.3d at 1059 n.2 (noting this requirement). If the Court finds there are disputed issues of material fact, then "the question of jurisdiction . . . should . . . await [] a determination on the merits." Young, 769 F.3d at 1053.
Petitioner was convicted in 1996 of witness tampering. Specifically, a jury found petitioner tampered with Proctor, by murder and by use of physical force and threats, to prevent Proctor from testifying in federal proceedings and to prevent Proctor from communicating with federal law enforcement. M.D. Pa. 60(b) Order at 5. In petitioner's trial, the government introduced testimony from Detective Fones and Agent Diller to support the federal element of the witness tampering crime. See generally, Pet'r Tr. Petitioner was sentenced to life imprisonment for witness tampering by murder, and to 10 years' imprisonment for witness tampering by physical force and threats. M.D. Pa. 60(b) Order at 3.
The instant Petition argued that petitioner's convictions on the Tampering Counts cannot stand. Specifically, petitioner contended that under Fowler the government had to make a greater showing that Proctor would have communicated with federal law enforcement (rather than state or local law enforcement), and that the government had failed to meet the Fowler standard in the evidence adduced at petitioner's trial. See generally, Pet.
Respondent moved to dismiss the Petition for lack of jurisdiction. In the Dismissal Motion, respondent conceded petitioner is actually innocent of the Tampering Counts to the extent they are predicated on petitioner's intent to prevent Proctor's testimony at federal proceedings. MTD at 7, 9 (conceding actual innocence of the federal proceeding charge in light of Arthur Andersen). However, respondent argued the Tampering Counts were also predicated on petitioner's intent to prevent Proctor from communicating with a federal law enforcement officer. Id. at 9-21. Respondent argued that petitioner "has not established" and "cannot make [the required] showing" that she is actually innocent of this prong because respondent can satisfy Fowler with the evidence from petitioner's trial and Willie Tyler's retrial. Id. at 8, 10. Respondent argued that this means the Tampering Counts stand and petitioner cannot invoke jurisdiction over the Petition. Id.
As discussed, supra III, respondent would have petitioner meet too high a burden at this stage. Rather than meeting her ultimate burden of proof in order to invoke jurisdiction over her escape hatch petition, petitioner need only establish that there is a genuine dispute of material fact, or that respondent is not entitled to summary judgment as a matter of law.
Petitioner will be able to invoke jurisdiction over her escape hatch petition if she "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Stephens, 464 F.3d at 898. Here, the government concedes that petitioner has not had an unobstructed procedural shot at presenting her claim. MTD at 9 ("Here, Bell satisfies the second prong. Arthur Andersen and Fowler were decided after the conclusion of her initial § 2255 proceeding."). Moreover, construing the facts in the light most favorable to petitioner, there is evidence from petitioner's trial and Willie Tyler's retrial that would allow a reasonable juror to conclude that the government's showing as to whether Proctor would have communicated with a federal law enforcement officer did not meet the Fowler standard. In addition, some evidence creates disputes of material fact that, when resolved, could support a reasonable juror's conclusion that there was only a "remote, outlandish, or simply hypothetical" chance that Proctor would have communicated with federal law enforcement. Fowler, 563 U.S. at 678. This is enough for the Petition to survive the Dismissal Motion.
In the Dismissal Motion, respondent conceded that Fowler represents a change in the law and petitioner has not had an unobstructed procedural shot to present her claim:
MTD at 9. Because respondent conceded that Fowler represents a change in the law and petitioner has not had an unobstructed procedural shot, the element of not having had an unobstructed procedural shot has been met.
In the Dismissal Motion, respondent argued that petitioner cannot establish actual innocence because, had Proctor not been killed, it is reasonably likely she would eventually have communicated with federal law enforcement regarding the Tyler Operation. See MTD at 9-18. Broadly, respondent argued that the Tyler Operation would likely have been of interest to federal law enforcement, that Proctor was still providing information regarding the Tyler Operation, and that therefore Proctor would eventually have spoken to federal law enforcement. See id. Respondent cited evidence from petitioner's trial and Willie Tyler's retrial
The Court will address respondent's evidentiary arguments. Having reviewed the testimony from both trials, the Court finds evidence that undercuts respondent's arguments.
To support its argument that Proctor was reasonably likely to communicate with federal law enforcement, respondent pointed to evidence that shows that: Proctor provided information to the Task Force regarding the Tyler Operation for two years before she was killed; the Tyler Operation crossed state lines; and the local office of the federal Drug Enforcement Administration ("DEA") reached out to local law enforcement for assistance, and 65 percent of that office's cases came from local law enforcement. MTD at 10-13 (citing Pet'r Tr. at 44-46, 54-55, 264, 300-01, 329, 351, 363, 435-36, 450-51, 533). However, the transcripts reveal two facts from which a reasonable juror could conclude there was only a "remote, outlandish, or simply hypothetical" chance that Proctor would have communicated with federal law enforcement. Fowler, 563 U.S. at 678.
Tyler Tr. at 259:15-21. Thus, for Proctor to have communicated with federal law enforcement, two steps were required: the investigation would have had to extend beyond the three counties of the Task Force before it was referred up to Agent Diller, and then the investigation would have to extend outside Pennsylvania before Agent Diller would refer it out to federal law enforcement. These two steps were only fulfilled "five to ten" times per year. Id. at 263:15-20. Even if a case were referred to federal law enforcement, Agent Diller testified that at times the case "didn't fit [DEA's] parameters for one reason or another and they didn't . . . pick up the ball." Id. at 261:15-18. In light of this testimony, and the fact that in the two years Proctor had worked for the Task Force her cases had not fallen into the "five to ten" that Agent Diller referred to federal authorities, a reasonable juror could conclude there was only a "remote, outlandish, or simply hypothetical" chance Proctor would have communicated with federal officers. Fowler, 563 U.S. at 678.
Although these facts do not conflict with the fact that 65 percent of the local DEA office's cases originated from local law enforcement, the latter fact illustrates where a case
In light of this testimony, respondent's argument that petitioner "
To support its argument that Proctor was reasonably likely to communicate with federal law enforcement, respondent pointed to evidence that shows that: the Task Force investigated drug crimes for local, state, and federal prosecution; Proctor was still providing information to the Task Force at the time of her death; Agent Diller viewed Proctor as a potential federal witness; and Agent Diller was sometimes deputized to work on federal cases, so a communication between Agent Diller and Proctor may alone satisfy the federal element. See MTD at 10-15 (citing Pet'r Tr. at 44-45; Tyler Tr. at 80-82, 85, 88-89, 93-94, 96-97, 123, 126-27, 131, 257, 259-62, 264-69, 315, 320, 349-51, 354-55, 363, 366, 378, 382-85, 391-92). However, comparing evidence from Willie Tyler's retrial with the testimony from petitioner's trial and with respondent's arguments raises three genuine issues of material fact. Depending on how the three disputed facts are resolved, they may support a reasonable juror's conclusion that there was only a "remote, outlandish, or simply hypothetical" chance that Proctor would have communicated with federal law enforcement. Fowler, 563 U.S. at 678.
Tyler Tr. at 257:5-9. If the Task Force was made up of local police as stated at Willie Tyler's retrial, rather than including federal investigators as represented at petitioner's trial, and those local police investigated violations of Pennsylvania law and were reimbursed from a state agency, this would suggest that the Task Force's focus was on state and local crimes.
This fact is material because a reasonable juror could conclude that a Task Force focused on state and local crimes, rather than federal crimes, would make it less likely Proctor would communicate with federal law enforcement. Indeed, the Third Circuit appears to have viewed this fact as material when it affirmed petitioner's conviction:
Bell, 113 F.3d at 1350 (emphasis added). The Third Circuit noted five times in its affirmance that the Task Force included federal officers. See id.; see also id. at 1347 ("the Tri-County Drug Task Force . . . was comprised of local, state, and federal investigators"); 1348 ("federal officers were involved in the Task Force investigation"); 1349 ("The questions upon which the disposition of this appeal turns, then, are . . . whether the jury could have concluded that at least one of Proctor's further communications with the Task Force would have been with a federal officer."); 1350 ("it is unclear whether Bell knew that the Task Force was a joint federal-state effort, but it is clear that it in fact was"). That the Third Circuit saw a need to emphasize the composition of the Task Force suggests its analysis may have changed if the Task Force were in fact comprised of only "members of local police departments."
Petitioner ultimately faces a high burden of proof: she "must show that no reasonable juror — properly instructed post-Fowler — could conclude that it is `reasonably likely . . . at least one of [Proctor's] relevant communications would have been made to a federal officer.'" MTD at 10. However, petitioner's burden at the dismissal stage is less daunting. As the Court found, see supra III, petitioner need only raise a genuine dispute as to a material fact, or show respondent is not entitled to judgment as a matter of law. Construing the facts in petitioner's favor, there appear to be at least two facts from which a reasonable juror could conclude Proctor was not reasonably likely to communicate with federal law enforcement, and three genuine disputes of material fact as to whether Proctor was not reasonably likely to communicate with federal law enforcement. Because there appear to be genuine disputes of material fact and respondent it not entitled to judgment as a matter of law, the Dismissal Motion is
Petitioner asked the Court to transfer the Petition to the Middle District of Pennsylvania "in the interests of justice and judicial economy." Transfer Mot. at 2 (citing 28 U.S.C. §§ 1404, 1406). However, the Court cannot transfer the Petition to the Middle District of Pennsylvania under either transfer statute, and so must deny the Transfer Motion.
Under 28 U.S.C. § 1404, the change-of-venue statute, a civil action may be transferred "to any other district or division where it might have been brought
Nor could the Court transfer the Petition under the second part of the statute, to a district to which all parties have consented, because respondent has not stated it would consent to proceeding in the Middle District of Pennsylvania. In light of its opposition to the Transfer Motion, respondent presumably would not consent to litigating in that District. See Dkt. No. 22 (opposing the Transfer Motion). Because neither element of the change-of-venue statute is met, the Court cannot transfer the Petition to the Middle District of Pennsylvania under that statute.
In the alternative, petitioner relied on 28 U.S.C. § 1406. Transfer Mot. at 2. However, that statute only applies when a petitioner or plaintiff has "filed a case laying venue in the wrong division or district." 28 U.S.C. § 1406(a); see also Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 55 (2013) (holding this statute only operates where venue is "wrong"). As found, supra IV, the Northern District of California may appropriately consider the Petition because it has jurisdiction over petitioner's escape hatch claim. Because venue is not "wrong" in the Northern District of California, 28 U.S.C. § 1406 does not apply and the Court cannot transfer the Petition to the Middle District of Pennsylvania under 28 U.S.C. § 1406.
Petitioner also cited cases where a court transferred a habeas petition to the appropriate federal district. See id. at 2-3. However, in the cases petitioner cited, a petition was transferred after the court concluded it lacked jurisdiction. See Verissimo v. I.N.S., 204 F.Supp.2d 818, 820 (D.N.J. 2002) (transferring to Massachusetts when the respondent moved petitioner between facilities on the East Coast); see Holmes v. Ebbert, No. 3:15CV72, 2015 WL 631043, at *1 (M.D. Pa. Feb. 12, 2015) (finding that petitioner had not successfully invoked Section 2241, but instead meant to proceed under Section 2255, and transferring to the sentencing court). Here, the Court has found that it has jurisdiction over the Petition because there are genuine disputes of material fact that affect whether a reasonable juror could conclude Proctor was not reasonably likely to communicate with federal law enforcement, and facts upon which a reasonable juror could base a conclusion that Proctor would not have so communicated. See supra IV. Petitioner has not cited any cases wherein a court transferred a Section 2241 petition over which it had jurisdiction.
Because the Court cannot transfer the Petition to the Middle District of Pennsylvania, the Transfer Motion is
The Court finds that appointment of counsel is warranted in this case because the Petition involves complex legal issues, petitioner is indigent, and counsel is necessary to defend petitioner's due process. Accordingly, the Court appoints petitioner's counsel from the Middle District of Pennsylvania.
Petitioner has not filed a standalone motion for appointment of counsel. See generally, Docket. However, petitioner requested counsel in her Petition and in her Opposition, see Petition at 8, Opposition at 7, and moved to transfer to the Middle District of Pennsylvania in part because she has been appointed counsel in that district, see Transfer Motion at 3. Petitioner thus implicitly moved to be appointed counsel. In addition, FPD Kalar and Judge Rambo, to whom petitioner's case in the Middle District of Pennsylvania was reassigned, have recommended that this Court appoint counsel. See Letters (explaining that the Petition presents "unique circumstances," such as Fowler's change to the law, the acquittal of Willie Tyler, and petitioner's having been appointed CJA counsel in Pennsylvania).
The Sixth Amendment's right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Unless an evidentiary hearing is required, the decision to appoint counsel is within the discretion of the district court. See id.; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). The courts have made appointment of counsel the exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or mixed legal and factual questions; (3) cases involving uneducated or mentally or physically impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the claims; (5) cases in which the petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, Fed. Habeas Corpus Prac. & Proc. § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965). Considering these factors, counsel is warranted here.
The Middle District of Pennsylvania appointed Edward Rymsza, Esq., under the Criminal Justice Act to represent petitioner in post-conviction proceedings. See 60(b) Mot. The FPD stated Mr. Rymsza is willing and able to represent petitioner in this proceeding. See Letters. Because the Court concludes that counsel is necessary to safeguard petitioner's due process, the Court
For the foregoing reasons, respondent's Dismissal Motion and petitioner's Transfer Motion are
It is ordered that the attorney whose name and contact information are listed below is appointed as counsel to represent petitioner.
Respondent shall file with the court and serve on petitioner and petitioner's counsel, within
