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Rezk v. State

United States District Court, D. New Hampshire

September 26, 2019

God, Michael A. Rezk
v.
State of New Hampshire

          God, Michael A. Rezk, pro se

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a New Hampshire State Prison inmate who identifies himself as “God, Michael A. Rezk, ” has filed a document (Doc. No. 1), that the court has docketed as a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Because this matter has been opened as a habeas action, it is before the court for preliminary review, to determine whether Rezk's petition is facially valid and may proceed, pursuant to Rules 1(b) and 4 of the Rules Governing Section 2254 Cases (“§ 2254 Rules”) and LR 4.3(d)(4)(A).

         § 2254 Rule 4 Standard

         A judge is required to examine a petition for habeas relief, and if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition.” § 2254 Rule 4; see also 28 U.S.C. § 2253 (writ may be issued, “unless it appears from the application that the . . . person detained is not entitled to it”); § 2254 Rule 1 (allowing court to subject § 2241 petitions to preliminary review under § 2254 Rule 4); McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.”). The court construes Rezk's pleadings liberally, in light of his pro se status. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).

         Discussion

         I. Characterization of Petition

         The court has docketed Rezk's petition as a habeas petition, because in it, he seeks release from incarceration, alleging: “I was arrested for a warrant of armed robbery[] in 2001, I've yet too [sic] be charged and taken too [sic] trial for armed robbery.” Doc. No. 1, at 1. Although Rezk's initial filing in this case was docketed as a § 2254 petition, as explained in this Report and Recommendation, the petition does not assert any claims challenging the state court judgment(s) which resulted in his current incarceration. Accordingly, it is not properly characterized as arising under § 2254, which grants jurisdiction over a petition challenging custody pursuant to state court “judgment” that violates inmate's federal rights. Instead, the petition is properly construed as asserted under 28 U.S.C. § 2241(c)(3), which grants this court jurisdiction to review an inmate's custody that is alleged to violate the Constitution, laws, and/or treaties of the United States.

         II. Legal Insufficiency of Petition

         A. Facts Underlying Rezk's Present Incarceration[1]

         Rezk was arrested on March 29, 2001 pursuant to a warrant for an alleged January 2001 armed robbery. See State v. Rezk, 150 N.H. 483, 485, 840 A.2d 758, 760 (2004) (affirming Rezk's convictions on one receiving stolen property charge and two felon in possession of a firearm charges, reversing Rezk's convictions on an attempted burglary charge and one felon in possession of a firearm charge, and remanding for resentencing). At the time of his March 29, 2001 arrest, Rezk, who had previously been convicted of a felony. See id., 150 N.H. at 485, 493, 840 A.2d at 760, 766-67; see also State v. Rezk, No. 218-2001-CR-00953, -00954 (N.H. Super. Ct., Rockingham Cty.).

         After his arrest, Rezk was taken to the police station and questioned by the police. In exchange for a waiver of his Miranda rights, the police promised Rezk, among other things, that they would not charge him with the January 2001 armed robbery that was the subject of the arrest warrant. See Rezk, 150 N.H. at 485, 840 A.2d at 760. The police never charged Rezk with armed robbery. See id., 150 N.H. at 486, 840 A.2d at 761.

         Rezk was charged with being a felon in possession of a firearm and receiving stolen property, see id., 150 N.H. at 485, 493, 84 A.2d at 760, 766-67; see also State v. Rezk, No. 218-2001-CR-00953, -00954 (N.H. Super. Ct., Rockingham Cty.), and convicted of those offenses after a jury trial.[2] See Rezk, 150 N.H. at 485, 84 A.2d at 760. The Superior Court sentenced him to serve 13½ - 37 years in prison for those offenses.[3] Nothing in Rezk's filing in this court suggests that he is challenging those criminal convictions or sentences, pursuant to which he is presently incarcerated.

         Because Rezk was never charged with armed robbery, he has never been detained pursuant to the January 2001 armed robbery, except on March 29, 2001, when he was arrested and detained at the police station on those charges. Accordingly, Rezk is ...


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