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Concepcion v. Hazelwood

United States District Court, D. New Hampshire

January 9, 2019

Alberto Concepcion
v.
Robert Hazlewood, Warden, Federal Correctional Institution, Berlin, New Hampshire

          Alberto Concepcion, pro se

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE

         Alberto 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.[1] 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.

         Background

         On 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 See United States v. Concepcion, 259 F.3d 717 (3d Cir. 2001) (unpublished).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.

         Concepcion 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 Court.” Id.

         In 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”).

         In 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 IV”).

         After 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 criminal case.

         Discussion

         I. Preliminary Review under § 2254 Rule 4

         A. Standard

         In 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).

         B. Savings ...


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