United States District Court, D. New Hampshire
Alberto Concepcion, pro se
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE
Concepcion, an inmate at the Federal Correctional
Institution, Berlin, New Hampshire (“FCI
Berlin”), has filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2241, challenging the validity
of his current sentence, imposed pursuant to a federal
prosecution in the District of New Jersey. See United
States v. Concepcion, No. 2:99-cr-00753-SDW-1 (D.N.J.)
(“Concepcion I”). Concepcion's
petition (Doc. No. 1), including the supplemental memorandum
(Doc. No. 9) that the court has deemed to be an addendum to
the petition, is before this court for preliminary review, to
determine whether Concepcion's claims are facially valid
and may proceed. See Rule 4 of the Rules Governing
Section 2254 Cases (“§ 2254 Rules”); §
2254 Rule 1(b) (authorizing court to apply § 2254 Rules
to § 2241 petitions); LR 4.3(d)(4)(A). Also before the
court is Concepcion's motion for release on bail (Doc.
No. 6) pending disposition of his section 2241 petition.
March 16, 2000, Concepcion pleaded guilty to one count of
conspiring to distribute more than 100 grams of heroin.
See Concepcion I, ECF No. 52. His June 2000 motion
to withdraw that plea was denied, and he was sentenced on
July 7, 2000 to 325 months imprisonment. See Concepcion
I, ECF Nos. 82, 83. The sentencing court set
Concepcion's sentence in the middle of the Guidelines
range of 292 to 365 months, after determining: that
Concepcion stipulated to a drug distribution offense
involving at least three kilograms but less than ten
kilograms of heroin; that Concepcion had played a
managerial/supervisory role in the distribution operation;
and that Concepcion had engaged in the obstruction of
justice. See July 7, 2000 Tr., Concepcion
I, filed in Concepcion v. United States, No.
2:02-cv-02301-WGB (D.N.J., Tr. filed Mar. 27, 2006) (ECF No.
22-4, at 24-26, 29-31, 35). The Third Circuit affirmed
Concepcion's direct appeal of his conviction and sentence
on May 10, 2001. See United States v.
Concepcion, 259 F.3d 717 (3d Cir. 2001) (unpublished).
The district court later reduced Concepcion's sentence to
275 months, upon granting Concepcion's pro se motion
filed pursuant to 18 U.S.C. § 3582(c)(2). See
May 31, 2016 Order, Concepcion I, ECF No. 136.
filed his first motion under 28 U.S.C. § 2255
challenging the validity of his detention in 2002. That
motion was denied. See Concepcion v. United States,
No. 2:02-cv-02301-WGB (D.N.J. Oct. 17, 2002). Concepcion then
filed a civil action against fifty-six governmental employees
and officials involved in his criminal case. The federal
court in New Jersey dismissed that civil case as frivolous
and malicious, see Apr. 4, 2005 Order,
Concepcion v. Resnik, No. 3:04-cv-05177-GEB-TJB
(D.N.J. Apr. 4, 2005), ECF No. 39, and Concepcion was
permanently enjoined “from filing further claims in
[the District of New Jersey] without leave of the
2010, Concepcion moved in the District of New Jersey for
leave to file a petition for a writ of habeas corpus under 28
U.S.C. § 2241. See Concepcion v. Zickefoose,
No. 3:10-cv-04210-MLC (D.N.J.). That court denied
Concepcion's request, see Mar. 4, 2011 Order,
id., ECF No. 10, and the Third Circuit affirmed that
denial, upon finding that the claims in Concepcion's
§ 2241 petition could have been raised in his direct
appeal or in his first § 2255 motion, see
Concepcion v. Zickefoose, 442 Fed.Appx. 622, 623 (3d
Cir. 2011) (“Concepcion II”).
2015, Concepcion sought leave in the District of New Jersey
to file a second petition under 28 U.S.C. § 2241,
asserting, among other things, “that his sentence
violates the Apprendi line of cases, that the
warrants and complaints against him are faulty and/or
fraudulent, that certain unknown federal agents conspired
against him to trump up the evidence in his criminal case,
[and] that his counsel was constitutionally
ineffective.” Concepcion v. Hollingsworth, No.
2:15-cv-07400-SDW, 2015 U.S. Dist. LEXIS 152031, at *4, 2015
WL 6942433, at *2 (D.N.J. Nov. 9, 2015)
(“Concepcion III”) (describing petition,
citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).
The Concepcion III court dismissed that § 2241
petition for lack of jurisdiction, finding it to be a second
or successive § 2255 motion for which Concepcion had not
obtained prior authorization. See id., 2015 U.S.
Dist. LEXIS 152031, at *7, 2015 WL 6942433, at *3. The Third
Circuit affirmed. See Concepcion v. Warden, 648
Fed.Appx. 160, 161 (3d Cir. 2016) (“Concepcion
Concepcion's transfer to FCI Berlin, he filed the instant
petition, seeking to invoke this court's jurisdiction
under 28 U.S.C. § 2241. This petition, like his prior
section 2241 petitions, challenges the validity of
Concepcion's conviction and sentence. Reproducing the
substance of arguments he made in his prior section 2241
petitions, Concepcion cites Apprendi and Burrage v.
United States, 571 U.S. 204 (2014), in arguing that he
was improperly subjected to a heightened minimum and maximum
sentence range pursuant to 21 U.S.C. § 841(b)(1)(B). As
in both prior petitions, Concepcion argues here that his
sentence resulted from the ineffective assistance of counsel,
that judges made false and fraudulent findings, and that
government agents involved in his prosecution engaged in
fraud and misconduct that affected the length of his sentence
and the validity of his guilty plea. He further argues that
government agents withheld a lab report that he contends is
new exculpatory evidence, and he asserts that the permanent
injunction imposed upon him by the District of New Jersey
requiring him to obtain leave of court before filing a civil
case is part of a cover-up of corruption and fraud in his
Preliminary Review under § 2254 Rule 4
undertaking § 2254 Rule 4 preliminary review, this court
examines the face of the petition, and any attached exhibits,
to determine whether the petitioner is plainly not entitled
to relief. See id.; McFarland v. Scott, 512
U.S. 849, 856 (1994). When a habeas petitioner proceeds pro
se, the assertions in the petition are construed liberally.
See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).