MEMO AND ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
I adopt the well reasoned Report of the Magistrate Judge andher Recommendation that the petition be DISMISSED.
REPORT AND RECOMMENDATION ON PETITIONER'S PRO SE REQUEST FOR SUMMARY JUDGMENT AND FOR LEAVE TO FILE AMENDED PETITION
DEIN, United States Magistrate Judge.
This matter was referred to this court for a report andrecommendation on the "Petitioner's Pro Se Request for SummaryJudgment" on his petition for habeas corpus relief under28 U.S.C. § 2241. Also before this court is the "Petitioner's Pro SeMotion for Leave to File Amended Respondent to 28 U.S.C. § 2241Petition." The motion to amend is ALLOWED. As detailed below,this court recommends that the petitioner's motion for summaryjudgment be DENIED and that the petition be DISMISSED pursuant toRule 4(b) of the Rules Governing Section 2255 Proceedings for theUnited States District Courts.
On September 23, 1987, the United States Navy frigate MCCLOYencountered the Panamanian tugboat COLOSO II on the high seas.See United States v. Corpus, 882 F.2d 546, 548 (1st Cir. 1989).After the COLOSO II refused to grant the MCCLOY permission toboard, and while the MCCLOY waited for a statement of noobjection from the Panamanian government, the MCCLOY observednumerous bales of marijuana in the wake of the COLOSO II. Seeid. at 548-49. When the COLOSO II was eventually boarded, thecaptain and crew were arrested. See id. at 549.
Following a two day jury trial in the United States DistrictCourt for the District of Puerto Rico, the captain and the crewmembers from the COLOSO II, including the defendant, were foundguilty of aiding and abetting the possession of marijuana, withan intent to distribute it, in violation of 18 U.S.C. § 2 and46 U.S.C. App. § 1903(a).1 See id. at 548. The petitioner wassentenced by that court to a term of thirty (30) years ofimprisonment.2 The conviction was affirmed on direct appealby the First Circuit Court of Appeals in United States v.Corpus, 882 F.2d 546, 548 (1st Cir.), cert. denied,493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989). Thereafter, andfollowing several lower court rulings, the First Circuitconfirmed that the petitioner and three of his co-defendants arenot eligible for parole. United States v. De LosSantos-Himitola, 924 F.2d 380, 382 (1st Cir. 1991).
The petitioner filed a motion pursuant to 28 U.S.C. § 2255which was dismissed by the Federal District Court for theDistrict of Puerto Rico on May 31, 1991. (See id. at 381;Memorandum of Law in Support of Motion for a Writ of HabeasCorpus Pursuant to Title 28 U.S.C. § 2241 ("Pet' r Mem.") at p.3). The petitioner then filed a motion pursuant to28 U.S.C. § 2244 seeking permission from the First Circuit to file a secondsuccessive § 2255 petition.(See Pet'r Mem. at pp. 3-4). The First Circuit deniedpetitioner's request on September 2, 1998. (See id.).
The Current Petition3
The petitioner filed the present petition for habeas relief,dated May 27, 1999, pursuant to 28 U.S.C. § 2241 in the UnitedStates District Court for the Southern District of Georgia(CV299-124). (See Pet'r Ex. 1-A). At the time the petition wasfiled, the petitioner was detained at the Jessup CorrectionalInstitution in Jessup, Georgia. The grounds raised are (1)ineffective assistance of counsel, (2) violation of Federal Ruleof Criminal Procedure 32 by failing to allow the petitioner toreview his pre-sentence report, and (3) lack of jurisdictionunder 46 U.S.C. App. § 1903 in that the vessel was not injurisdictional waters of the United States. On June 25, 1999,United States District Court Judge Anthony A. Alaimo of theSouthern District of Georgia transferred the case to the Districtof Puerto Rico, ruling that "[w]hile this Court has jurisdictionover this petition, it is the practice of this Court to transferan action attacking a sentence to the district in which theoriginal criminal proceedings were conducted." (Pet'r Ex. 2-A).The case was assigned to Judge Jose A. Fuste in Puerto Rico andgiven case number 99-1717(JAF).
On or about October 1999, the petitioner was transferred to theFederal Medical Center-Devens in Ayer, Massachusetts, and he sonotified the court in Puerto Rico. (See Pet'r Ex. 3-A). On orabout June 27, 2000, the petitioner filed a motion for summaryjudgment in Puerto Rico, contending that since eleven months hadpassed from the original filing of his petition and there hadbeen no response to the petition from the government, the courtshould conclude that there were no issues of material fact indispute as to his § 2241 petition. (Pet'r Ex. 4-A). Gonzalez thenrequested an order vacating his sentence. (See id.).
The United States filed an Opposition to Petitioner's Motionfor Summary Judgment in Puerto Rico on August 17, 2000. (SeeDocket # 10, Civil Action No. 99-1717(JAF)). Therein, thegovernment argued that the District of Puerto Rico lackedjurisdiction over the § 2241 petition since the petitioner wasnot confined in Puerto Rico. In addition, the government arguedthat the issues raised should properly have been raised on appealor in a § 2255 petition. Finally, the government claimed that thepetition should be dismissed because the petitioner committed a"procedural default" by failing to raise the issues before. Forall these reasons, the government claimed, the court lackedjurisdiction over the petition. The government reserved the rightto address the petitioner's claims on the merits if ordered to doso by the court.
The petitioner filed an "Objection to the Government's Motionin Opposition" on September 12, 2000, addressing all the pointsraised by the government. (See Pet'r Ex. 6-A).
On December 18, 2000, Judge Fuste issued an Opinion and Ordertransferring the case to the District of Massachusetts forfurther consideration. (See Pet'r Ex. 8-A). The court reasonedthat a court issuing a habeas writ under § 2241 must havejurisdiction over the petitioner's custodian. Because thepetitioner is now detainedin Massachusetts, the court concluded that it did not havejurisdiction over the petitioner's custodian and could not"entertain Petitioner's Section 2241 petition."
Presently pending before this court is petitioner's Motion forSummary Judgment, and the "Petitioner's Pro Se Motion For Leaveto File Amended Respondent to 28 U.S.C. § 2241 Petition" by whichthe petitioner is seeking to add David Winn, the Warden of theFederal Medical Center-Devens, as a respondent. (See Docket #2). The motion to amend is ALLOWED. This court recommends to theDistrict Judge to whom the case has been assigned that the motionfor summary judgment be DENIED. The government had no obligationto respond to the petition on the merits absent a court order,and no such order has been entered. (See Rule 4(b) of the RulesGoverning Section 2255 Proceedings for the United States DistrictCourts). Moreover, the government did respond to the motion forsummary judgment in Puerto Rico, rendering petitioner's complaintof no response moot.
This court further recommends that this petition be DISMISSEDas the petitioner is not entitled to habeas relief under28 U.S.C. § 2241.
1. Jurisdiction of this Court
The current habeas petition now rests in its third districtsince it was originally filed. As a result, it would be prudentfor this court to first determine whether it has jurisdiction torule on the merits of the petition. See Hernandez v. Campbell,204 F.3d 861, 865 (9th Cir. 2000) ("Federal courts are alwaysunder an independent obligation to examine their ownjurisdiction, and . . . not entertain an action over which it hasno jurisdiction") (internal citations omitted). For the reasonsdetailed below, I conclude that jurisdiction appropriately restsin this court.
"Generally, motions to contest the legality of a sentence mustbe filed under [28 U.S.C.] § 2255 in the sentencing court, whilepetitions that challenge the manner, location, or conditions of asentence's execution must be brought pursuant to § 2241 in thecustodial court." Id. at 864 and authorities cited. "Under thesavings clause of § 2255, however, a federal prisoner may file ahabeas corpus petition pursuant to § 2241 to contest the legalityof a sentence where his remedy under § 2255 is `inadequate orineffective to test the legality of his detention.'28 U.S.C. § 2255. . . ." Id. at 864-65 and authorities cited. Suchpetitions under § 2241 contesting the legality of a sentence mustalso be heard in the custodial court. See Hernandez, 204 F.3dat 865 and cases cited; Lee v. Wetzel, 244 F.3d 370 (5th Cir.2001). Thus, regardless of the basis of a claim, "a § 2241petition is properly brought in the district court withjurisdiction over the prisoner's custodian (unlike a § 2255petition, which must be brought in the sentencing court)."United States v. Barrett, 178 F.3d 34, 50 n. 10 (1st Cir.1999), cert. denied, 528 U.S. 1176, 120 S.Ct. 1208, 145 L.Ed.2d1110 (2000), and cases cited.
In the instant case, Gonzalez is purporting to proceed under §2241. For the reasons detailed below, the issues he is raisingchallenging the legality of his sentence are governed by § 2255.Since, however, both traditional § 2241 claims and § 2241 claimsunder the savings provision of § 2255 testing the legality of adetention must be brought in the custodial court, jurisdiction isproper in the District of Massachusetts. See Norton v. UnitedStates, 119 F. Supp.2d 43, 45 (D.Mass. 2000) ("[E]ven where thepetitioner challenges the validity, rather than the execution ofhis sentence . . . under § 2241, jurisdiction lies, not in thesentencing court as per section § 2255, but in the district courtthat has jurisdiction over custodian").
2. The Distinction Between Claims Under § 2255 and § 2241
A writ of habeas corpus pursuant to 28 U.S.C. § 2255 "providesthe primary means of collateral attack on a federal sentence."Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (internalcitations omitted); Chambers v. United States, 106 F.3d 472,474 (2d Cir. 1997) (petition pursuant to § 2255 challenges theimposition of a sentence). Thus, "§ 2255 is generally the propervehicle for a federal prisoner's challenge to his conviction andsentence, as it encompasses claims that `the sentence was imposedin violation of the Constitution or laws of the United States, orthat the court was without jurisdiction to impose such sentence,or that the sentence was in excess of the maximum authorized bylaw, or is otherwise subject to collateral attack.'28 U.S.C. § 2255, ¶ 1." Jiminian v. Nash, 245 F.3d 144, 147-48 (2d Cir.2001).
Congress, in enacting the Antiterrorism and Effective DeathPenalty Act ("AEDPA") severely limited a petitioner's right ofreview under § 2255. Thus, before filing a second or successive §2255 petition in the district court, the movant must "move in theappropriate court of appeals for an order authorizing thedistrict court to consider the application."28 U.S.C. § 2244(b)(3)(A); see also §§ 2244(a) and § 2255; First CircuitLocal Rule 22.2. See also Jamison v. United States,244 F.3d 44, 46 (1st Cir. 2001) ("the current habeas statute imposes aone-bite rule with a pair of narrow but important exceptions").As detailed above, Gonzalez previously moved in the First Circuitfor leave to file a second petition under § 2255, but permissionwas denied. He has not sought any leave to proceed with thepresent petition which he has styled as a § 2241 petition.
In contrast to § 2255, a "motion pursuant to § 2241 generallychallenges the execution of a federal prisoner's sentence,including such matters as the administration of parole,computation of a prisoner's sentence by prison officials, prisondisciplinary actions, prison transfers, types of detention andprison conditions." Jiminian, 245 F.3d at 146, emphasis in theoriginal. See also Barrett, 178 F.3d at 50 n. 10 (petitionspursuant to § 2241 generally attack the execution of a sentence);Hernandez, 204 F.3d at 864 ("petitions that challenge themanner, location, or conditions of a sentence's execution must bebrought pursuant to § 2241 . . ."); Pack, 218 F.3d at 451 ("Asection 2241 petition on behalf of a sentenced prisoner attacksthe manner in which the sentence is carried out or the prisonauthorities' determination of its duration. . . .") and casescited. Petitions under § 2241, unlike those brought under § 2255,are not limited. However, the courts are very clear that apetitioner cannot evade the restrictions of § 2255 by resortingto § 2241. See Barrett, 178 F.3d at 50-52; see also Pack, 218F.3d at 452 ("[a] petition for a writ of habeas corpus pursuantto [section] 2241 is not a substitute for a motion under[section] 2255") and authorities cited. Since Gonzalez's petitionis not appropriately brought under § 2241, it should bedismissed.
3. The Instant Petition
The petitioner seeks habeas relief on three grounds: (1) hechallenges his conviction and sentence due to alleged ineffectiveassistance of counsel in violation of the Sixth Amendment; (2) heclaims that the sentencing court failed to comply withFed.R.Crim.P. 32 by not allowing him to review his pre-sentencereport; and (3) heclaims that the jurisdictional requirements of 46 U.S.C. App. §1903 were not satisfied since the COLOSO II was outside thejurisdictional waters of the United States.
None of these grounds challenge the manner, location, orconditions of the petitioner's sentence. Rather, each attacks thevalidity of the imposition of the sentence, which is generallywithin the domain of a habeas petition under § 2255. For example,ineffective assistance of counsel claims seeking post-convictionrelief are properly brought in a habeas petition pursuant to28 U.S.C. § 2255. See United States v. Perez-Carrera, 243 F.3d 42,45 (1st Cir. 2001). See also United States v. Osorio-Pena,First Circuit Court of Appeals, 247 F.3d 14 (1st Cir. 2001)(claim of ineffective assistance of counsel should be raised by ahabeas petition under 28 U.S.C. § 2255). Similarly, the assertionthat the court lacked jurisdiction over the claim falls squarelywithin the purview of § 2255 which allows a defendant to vacate,set aside or correct his sentence on the grounds that "the courtwas without jurisdiction to impose such a sentence." Id. at 19n. 3.
Petitioner's claim that he did not review his pre-sentencereport and that, therefore, a violation of Fed.R.Crim.P. 32occurred requires some additional discussion. As an initialmatter, it must be noted that the petitioner has not identifiedany specific errors in his pre-sentence report ("PSI"), nor doeshe contend that any identifiable error resulted in too lengthy asentence. Rather, he simply asserts that since he did not havethe opportunity to review his PSI, this court should "issue anorder vacating his sentence" and order "that a new trial beforth-coming." (Pet'r Mem. at 21). Thus, on its face, it is clearthat the petitioner is not challenging the "manner, location, orconditions of a sentence," but rather the legality of thesentence. If such a claim is viable at all, the avenue of reliefmay be through § 2255.
In United States v. Angiulo, 57 F.3d 38 (1st Cir. 1995), thecourt recognized the "importance" of Fed.R.Crim.P. 32 and the"requirement of literal compliance" with its terms. Id. at 41.Nevertheless, the court ruled further, there are limited avenuesfor review of claimed violations of Rule 32. Thus, "Rule 32, inand of itself, does not confer district court jurisdiction toconduct a postsentence review." Id. and cases cited. Onoccasion, the First Circuit and other courts "sometimes haveallowed violations to Rule 32 to be addressed in timely Rule 35motions" "to correct a sentence imposed in an illegal manner."Id. and cases cited. No such motion was filed in the instantcase, and any time for filing such a motion has long sinceexpired.4
The Angiulo court left open whether review was available byway of any habeas petition. As the court stated in a footnote:
It is often assumed that inaccuracies in a PSI Report may form the basis for a petition under 28 U.S.C. § 2255. See United States v. Gattas, 862 F.2d 1432, 1433-34 & n. 4 (10th Cir. 1988); United States v. Mosquera, 845 F.2d 1122, 1124 n. 1 (1st Cir. 1988). In addition, courts have suggested that such relief may be obtainable pursuant to 18 U.S.C. § 2241. See Peloso, 824 F.2d at 915; United States v. Daniels, 737 F. Supp. 111, 114 (D.Me. 1990). The appellants have not asserted jurisdiction under either of those statutes, and they have expressed disclaimed reliance on § 2255. Thus, we take no view of the appropriateness vel non of any such potential remedies.
Id. at 42 n. 6. See also Isabel v. United States,980 F.2d 60, 65 (1st Cir. 1992) (court assumes, arguendo, that claim ofviolation of Rule 32 may be considered in a § 2255 petition).
A review of the cases which "have suggested" that § 2241 may bean appropriate vehicle do not aid the petitioner in this case.The "suggestions" were clearly dicta and, at most, can be readto authorize a § 2241 petition for a Rule 32 violation only ifthe claim otherwise falls within the meaning of § 2241. Forexample, in United States v. Peloso, a federal prisoner broughta motion under Fed.R.Crim.P. 32 claiming that there had been anerror in the presentencing report which resulted in his beingsentenced to the maximum time without parole. See 824 F.2d 914,915 (11th Cir. 1987). After the court confirmed that Rule 32"does not confer jurisdiction on the district court to consider amotion to correct a presentence investigation report" and notedthat the "issue may be pursued in some cases under Rule 35," thecourt went on to state that "[a]dditionally, such a motion may beconstrued as a section 2255 habeas corpus petition, or a section2241 habeas petition (directed at the parole commission for usingfalse information)." Id. at 915. However, any treatment ofPelosi's claim as a § 2241 petition would be "fruitless"according to the court, since the petitioner had not objected tothe report at sentencing. Id. Thus, the reference to thetreatment of the Rule 32 motion as a § 2241 petition was meredicta. Moreover, the court relied on United States v. Fischerfor support. See 821 F.2d 557, 559 (11th Cir. 1987). In thatcase, a challenge to a presentence report exceeded the timelimits imposed by Rule 35. The prisoner was given the opportunityto assert a claim under § 2255 — there is no mention of § 2241 atall.
In United States v. Daniels, the petitioner was challengingspecific factual errors in the presentencing report on which theParole Commission relied in altering his parole eligibility date.See 737 F. Supp. 111, 112 (D.Me. 1990). Thus, unlike the instantcase, Daniels "launches by the motion no attack upon thelegality of the sentences imposed upon him in this district.Rather, he is challenging the legality of the circumstances underwhich the sentences, treated as legally imposed, are required tobe executed." Id. at 113. Under such circumstances, thepetitioner was free to proceed under § 2241. Id. at 114. In thepresent case, the defendant is challenging the legality of hissentence. Therefore, the petition raises claims which should havebeen asserted under § 2255. See United States v. Sarduy,838 F.2d 157, 158 (6th Cir. 1988); U.S. v. Fischer, 821 F.2d 557,558-59; Poor Thunder v. United States, 810 F.2d 817, 822-23(8th Cir. 1987); United States v. Mosquera, 845 F.2d 1122, 1124(1st Cir. 1988) (Rule 32 violations raised in habeas petitionunder § 2255).
4. The "Savings Clause" Under § 2255
As noted above, under limited circumstances a petitioner mayproceed under § 2241 where he establishes that a petitionpursuant to § 2255 would be "inadequate or ineffective" asdefined by the savings clause of § 2255. Gonzalez has failed tomeet this burden. See Gonzalez v. United States, 135 F. Supp.2d 112,121 (D.Mass. 2001) ("the burden is on [the petitioner] toestablish that his remedy under section 2255 is inadequate orineffective") citing cases.
The First Circuit has yet to define the full meaning and scopeof the savings clause. See Sustache-Rivera v. United States,221 F.3d 8, 17 (1st Cir. 2000), cert. denied, ___ U.S. ___, 121S.Ct. 1364, 149 L.Ed.2d 292 (2001). Most circuits that haveattempted to define the scope of the clause have indicated "thatit applies only in the most extraordinary circumstances."Gonzalez, 135 F. Supp.2d at 121, citing cases. The First Circuithas recognized that "the savings clause has most often been usedas a vehicle to present an argument, that under a Supreme Courtdecision overruling the circuit courts as to the meaning of astatute, a prisoner is not guilty within the new meaningattributed to the statute." Sustache-Rivera, 221 F.3d at 16citing cases. In essence, the prisoner claims he is actuallyinnocent because he was convicted of a non-existent offense. SeeGonzalez, 135 F. Supp.2d at 121; see also Reyes-Requena v.United States, 243 F.3d 893, 904 (5th Cir. 2001) (afterexamining cases from the various circuits the court held that"the savings clause of § 2255 applies to a claim (i) that isbased on a retroactively applicable Supreme Court decision whichestablishes that the petitioner may have been convicted of anonexistent offense and (ii) that was foreclosed by circuit lawat the time when the claim should have been raised in thepetitioner's trial, appeal, or first § 2255 motion"). Thesecircumstances are not present in the instant case. Therefore, thepetitioner cannot proceed under the savings clause of § 2255.
Finally, the instant petition must fail because before thesavings clause of § 2255 can be invoked, a petitioner must showthat he was unable to bring his claim earlier. Gonzalez,135 F. Supp.2d at 122. See Sustache-Rivera, 221 F.3d at 17 (citingBousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604,1611, 140 L.Ed.2d 828 (1998)) (petitioner "must show cause andprejudice for his failure to have previously made the claim").Gonzalez offers no reason why he could not have raised theseclaims earlier. All the relevant facts in his present petition,including that his lawyer represented co-defendants, he did notsee the pre-sentencing report, and the location of the ship inrelation to the jurisdictional waters of the United States, wereall clearly known to the defendant at the time of his directappeal and upon filing of his previous § 2255 petition. The factthat his lawyer did not act upon the information does not relievepetitioner of his timeliness obligation. See U.S. v.Osorio-Pena, 247 F.3d 14 (2001) (information not "newlydiscovered" even though it was not known to defendant where itwas known to his counsel).
Courts commonly agree that "a petition under § 2255 cannotbecome `inadequate or ineffective,' thus permitting the use of §2241 merely because a petitioner cannot meet the AEDPA `second orsuccessive' requirements." Barrett, 178 F.3d at 50. See alsoSustache-Rivera, 221 F.3d at 16 n. 13; Pack, 218 F.3d at 453;Jiminian, 245 F.3d at 147-48; United States v. Lurie,207 F.3d 1075, 1077 (8th Cir. 2000); Charles v. Chandler,180 F.3d 753, 756 (6th Cir. 1999) ("the § 2255 remedy is not consideredinadequate or ineffective simply because § 2255 relief hasalready been denied, . . . or because the petitioner isprocedurally barred from pursuing relief under § 2255, . . . orbecause the petitioner has been denied permission to file asecond or successive motion to vacate"). Yet that seems to be thesole motivating factor in the instant case. The petitioner hasfailed to state any claims appropriately brought under § 2241.
5. The Appropriate Remedy
In certain circumstances, a claim improperly brought under §2241 may be treated by the court procedurally as one broughtpursuant to § 2255. For example, in Jiminian, the SecondCircuit held "that when presented with a § 2241 petition raisingpreviously unavailable claims appropriately the subject of a§ 2255 motion, district courts should construe the petition as asecond or successive § 2255 motion and transfer it to . . . [thecourt of appeals] for certification, so long as the prisoner hada prior § 2255 motion dismissed on the merits." 245 F.3d at 148.This is not appropriate here, however, since the District Courtof Massachusetts does not have jurisdiction over a § 2255petition from Gonzalez. See Dalton v. Fleming, No.4:00-CV-0374-A, 2001 WL 167824, at *1 (N.D.Tex. Jan. 18, 2001)(dismissing § 2241 petition for lack of jurisdiction and notdeciding to construe the § 2241 as a motion under § 2255 sincethe petitioner's sentencing court was located in anotherdistrict). Moreover, the petitioner has made it clear that heintended to proceed under § 2241, and not § 2255. See, e.g.,petitioner's reply to government's opposition to his motion forsummary judgment wherein he makes clear his intention to proceedunder § 2241 not § 2255. (See Pet'r Ex. 6-A at 4, 6-7).
Because the petitioner cannot state a valid claim under § 2241,dismissal of the petition is the most appropriate course ofaction. See Millan v. Parks, 18 F. Supp.2d 144, 145-46 (D.P.R.1998) (dismissing § 2241 petition when petitioner could not showwhy § 2255 remedy was inadequate or ineffective); see alsoLurie, 207 F.3d at 1077 (affirming district court judge'ssummary dismissal of § 2241 petition); Osayande v. UnitedStates, No. 3-01-CV-0267-G, 2001 WL 209466, at * 1-2 (N.D.Tex.Feb. 21, 2001) (magistrate judge recommending dismissal of § 2241petition where petitioner's basis for moving under § 2241 was dueto unsuccessful efforts on direct appeal and § 2255 motions);Garrett v. Menefee, No. 00-CV-08274, 2001 WL 170678, at *2(S.D.N.Y. Feb. 21, 2001) (dismissing petition deliberately filedunder § 2241, rather than converting to § 2255 motion).
6. The Motion For Summary Judgment
As detailed above, the petitioner moved for summary judgment onthe grounds that there had been no substantive response to hispetition. That motion should be DENIED. No substantive responseis due absent order of the court, and no such order was enteredhere. (See Rule 4(b) of the Rules Governing Section 2255Proceedings for the United States District Courts). Moreover, theUnited States Attorneys Office in Puerto Rico did respond to thepetitioner's motion.
For all the reasons herein:
1. The motion to amend is ALLOWED;
2. This court recommends that the motion for summary judgmentbe DENIED; and
3. This court further recommends that the habeas corpuspetition under § 2241 be DISMISSED.5
May 16, 2001.
1. 46 U.S.C. App. § 1903(a) provides that "[i]t is unlawful forany person . . . on board a vessel subject to the jurisdiction ofthe United States . . . to possess with intent to manufacture ordistribute, a controlled substance." A vehicle subject to thejurisdiction of the United States includes "a vessel registeredin a foreign nation where the flag nation has consented or waivedobjection to the enforcement of United States law by the UnitedStates." 46 U.S.C. App. § 1903(c)(1)(C).
2. The sentences of the petitioner, the captain and one othercrew member, Wilfredo Gongora, were harsher than those imposed onthe others due to prior criminal records. See Corpus, 882 F.2dat 553. Gongora filed a motion to vacate his sentence under28 U.S.C. § 2255. The District Court dismissed the motion, which wasaffirmed by the First Circuit in an unpublished decision. SeeGongora v. United States, 8 F.3d 809, 1993 WL 450337 (1st Cir.1993).
3. Copies of relevant proceedings and opinions are attached asexhibits to "Petitioner's Pro Se Motion for Leave to File AmendedRespondent to 28 U.S.C. § 2241 Petition," which petition wasfiled in this court on February 7, 2001. Since these pleadingsand orders were filed in cases in different jurisdictions overthe years, it is most convenient to refer to their exhibitnumbers. Therefore, references will be to "Pet'r Ex. ___."
4. The time limits under Rule 35 changed between the time ofthe crime (September 1987) and the time of the conviction(December 1987). However, the issue of which limits areapplicable does not have to be reached.
5. The parties are hereby advised that under the provisions ofRule 3(b) of the Rules for United States Magistrates in theUnited States District Court for the District of Massachusetts,any party who objects to these proposed findings andrecommendations must file a written objection thereto with theClerk of this Court within 10 days of the party's receipt of thisReport and Recommendation. The written objections mustspecifically identify the portion of the proposed findings,recommendations or report to which objection ismade and thebasis for such objections. The parties are further advised thatthe United States Court of Appeals for this Circuit hasrepeatedly indicated that failure to comply with this rule shallpreclude further appellate review. See Keating v. Sec'y ofHealth & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988);United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986);Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605(1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-379(1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1stCir.1983); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466,88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth DouglasHosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v.McGee, 36 F.3d 143, 150-151 (1st Cir.1994); Santiago v. CanonU.S.A., Inc., 138 F.3d 1, 4-5 (1st Cir.1998).