Lopez-Pena v. Barr ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JULIO CESAR LOPEZ-PENA,
Petitioner,
v. Civil Action No. 20-1889 (RDM)
MERRICK B. GARLAND, 1
Respondent.
MEMORANDUM OPINION
Julio Cesar Lopez-Pena, a federal prisoner, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Dkt. 1 at 10. In his petition, Lopez-Pena also seeks to
compel the government to investigate and subsequently to indict every federal district and
appellate court judge, as well as all nine Justices of the Supreme Court, for “participating in [an]
ongoing criminal racketeering conspiracy,” which Lopez-Pena refers to as “the ‘Incentivized
Penal System.’” 2 Id. at 131.
On September 23, 2020, the government filed a response to Lopez-Pena’s petition, asking
the Court to dismiss it. Dkt. 7. As the government recognized, however, only the odd-numbered
pages of Lopez-Pena’s petition were initially filed on the docket (this occurred due to a copying
error in the Clerk’s Office). Id. at 2. As a result, the substance of Lopez-Pena’s claims was, “for
the most part, incomprehensible.” Id. The Clerk’s Office filed a full version of Lopez-Pena’s
petition on April 7, 2021. Dkt. 1.
1
Merrick B. Garland, the current Attorney General, is substituted for William P. Barr pursuant
to Federal Rule of Civil Procedure 25(d).
2
Pursuant to the rule of necessity, see United States v. Will, 449 U.S. 200, 211–17 (1950), the
undersigned will not recuse from this matter.
1
For the reasons set forth below, the Court concludes that Lopez-Pena’s habeas petition
must indeed be dismissed. In addition, although the government has not yet responded to the full
version of Lopez-Pena’s complaint, the Court will sua sponte dismiss Lopez-Pena’s remaining
claims, which seek to compel federal prosecutors to indict the federal judiciary, for want of
subject-matter jurisdiction.
I. BACKGROUND
On June 3, 2008, following a jury trial in the United States District Court for the Southern
District of New York, Lopez-Pena was convicted of conspiracy to distribute five kilograms or
more of cocaine into the United States, in violation of 21 U.S.C. § 963, and was subsequently
sentenced to 540 months of imprisonment, to be followed by five years of supervised release.
Dkt. 7 at 1; see also United States v. Lopez–Pena, No. 05-cr-191, 2008 WL 2169657 (S.D.N.Y.
May 23, 2008); United States v. Lopez-Pena, No. 10-cv-7381, 2011 WL 1676286, at *1
(S.D.N.Y. May 2, 2011); United States v. Lopez-Pena, No. 05-cr-191, 2018 WL 4006803(S.D.N.Y. Mar. 7, 2018). The United States Court of Appeals for the Second Circuit
subsequently affirmed his conviction and sentence. See United States v. Sanpedro, 352 F. App’x
482 (2d Cir. 2009). Lopez-Pena is currently incarcerated at the Federal Correctional Institution
Allenwood in White Deer, Pennsylvania. Dkt. 7 at 1.
Since his conviction, Lopez-Pena has repeatedly sought post-conviction relief. Relevant
to this petition, in 2011, Lopez-Pena sought to vacate his sentence pursuant to 28 U.S.C. § 2255
in the Southern District of New York, see Lopez-Pena, 2011 WL 1676286, at *1, and, in 2020,
he filed a habeas petition pursuant to 28 U.S.C. § 2241 in the Middle District of Pennsylvania,
see Lopez-Pena v. Barr, No. 20-cv-183, 2020 U.S. Dist. LEXIS 39045 (M.D. Pa. Mar. 6, 2020);
see also Lopez-Pena v. Barr, No. 20-cv-183, 2020 WL 8991673, at *1 (M.D. Pa. Apr. 15, 2020).
2
Both the § 2255 motion and the § 2241 petition were denied. See Lopez-Pena, 2011 WL
1676286, at *1 (§ 2255); Lopez-Pena, 2020 U.S. Dist. LEXIS 39045 (§ 2241).
Lopez-Pena has now filed another habeas petition pursuant to 28 U.S.C. § 2241 before
this Court. He argues that his conviction and sentence are unlawful for various reasons,
challenging principally the government’s authority to “subject [him] to federal investigation,
indictment, prosecution, trial, judgment, conviction, and detention/imprisonment.” Dkt. 1 at 35
(capitalization altered). Lopez-Pena also seeks to compel the government to investigate and
subsequently to indict every federal judge in the country, who, Lopez-Pena alleges, have
knowledge of and have failed to report a litany of criminal acts related to what he calls the
“ongoing criminal racketeering enterprise known as the ‘incentivized penal system.’” Id. at 131–
35 (alleging violations of 18 U.S.C. §§ 2, 3, 4, 201, 241, 242, 371, 1001). Lopez-Pena requests
that information related to these alleged criminal acts be presented to the special grand jury for
the District of Columbia. Id. at 129 (citing 18 U.S.C. § 3332).
On September 23, 2020, the government timely filed a response to Lopez-Pena’s petition,
requesting that the Court dismiss it. Dkt. 7 at 2. The Court issued a Fox/Neal order advising
Lopez-Pena to respond to the government by November 13, 2020. Dkt. 9. Lopez-Pena
responded to the government on October 16, 2020, Dkt. 12, and subsequently filed a Motion for
Leave to Conduct Discovery pursuant to Federal Rules of Civil Procedure 26 and 36, Federal
Rule of Criminal Procedure 6, and 28 U.S.C. § 2241, Dkt. 13.
II. ANALYSIS
Under 28 U.S.C. § 2243, a court “entertaining an application for a writ of habeas corpus”
must award the writ or “issue an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application that the applicant or person detained
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is not entitled thereto.” Here, the Court concludes that because Lopez-Pena’s petition must be
brought as a 28 U.S.C. § 2255 motion filed with the court which imposed his sentence, he is not
entitled to the writ and his § 2241 habeas petition will be dismissed. The Court further concludes
that even if Lopez-Pena’s petition could be brought under § 2241, instead of § 2255, it must be
dismissed because Lopez-Pena’s custodian lies outside the territorial jurisdiction of the Court.
To start, it is well established that a challenge to the petitioner’s federal conviction or
sentence must be made in the sentencing court under 28 U.S.C. § 2255. See Pradelski v. Hawk-
Sawyer, 36 F. Supp. 2d 1, 1–2 (D.D.C. 1999) (“Section 2255 . . . expressly encompasses both
challenges to the jurisdiction of the federal court imposing sentence and attacks on the
constitutionality of a federal prisoner’s conviction.”). “[O]nly thereafter, and if the prisoner can
show that the remedy under § 2255 is inadequate or ineffective, [may] the challenge . . . be
brought under 28 U.S.C. § 2241 as a petition for a writ of habeas corpus lodged in the district
court that has personal jurisdiction over the prisoner’s immediate custodian.” Twitty v. Holder,
No. 10-cv-174, 2010 WL 364343, at *1 (D.D.C. Jan. 29, 2010) (citing 28 U.S.C. § 2255 and
Wilson v. Office of Chairperson, D.C. Bd. of Parole, 892 F. Supp. 277, 279 (D.D.C. 1995)).
“Even when a 28 U.S.C. § 2241 habeas is available to a federal prisoner,” however, “he must
seek the writ in the district where his custodian is found.” Tennille v. Ashcroft, No. 02-5256,
2002 WL 31108723, at *1 (D.C. Cir. Sept. 20, 2002) (per curiam) (citation omitted).
Here, Lopez-Pena disavows bringing a motion under 28 U.S.C. § 2255. Dkt. 1 at 13–14.
Instead, he asks the Court to issue a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing
that the Attorney General lacked authority to “subject [him] to federal investigation, indictment,
prosecution, trial, judgement, conviction, and detention/imprisonment.” Dkt. 1 at 35. Lopez-
Pena argues that his claim does not fall within the scope of § 2255 because he is contesting only
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the legality of his detention, not his conviction or sentence, and because he is not challenging the
jurisdiction of his sentencing court, but rather the “jurisdiction” of the Attorney General. Id. at
13–14.
This argument fails for multiple reasons. First, despite his protests to the contrary,
Lopez-Pena’s claim is a challenge to his conviction and the resulting sentence. That is, even
under Lopez-Pena’s own theory of the case, his detention is unlawful because (1) the attorney
general lacked authority to prosecute him, Dkt. 12 at 6; (2) the trial court was without
jurisdiction over his case, id.; (3) “[t]he only relevant documents [justifying his detention] . . .
[were] essentially forged to illegally incarcerate him,” id. at 7; and (4) “the procedures used to
detain” him were unlawful, id. at 7–8. Lopez-Pena’s claim therefore falls within § 2255, see 28
U.S.C. § 2255(a) (authorizing courts to provide relief to prisoners detained under a sentence
imposed by a court “without jurisdiction to impose such sentence” or on “the ground that the
sentence was imposed in violation of the Constitution or laws of the United States”), and cannot
be raised in a § 2241 petition unless the § 2255 remedy would either be “inadequate or
ineffective,” id. § 2255(e); see also Larsen v. Garland, No. 20-cv-840, 2021 WL 1061207, at *1
(D.D.C. Mar. 19, 2021); Fouche v. Mukasey, 296 Fed. App’x 74, 74 (D.C. Cir. 2008) (per
curiam). Nor does Lopez-Pena satisfy either of those conditions; the prospect that his claim is
likely to fail on the merits does not mean that the remedy provided in § 2255 is “inadequate or
ineffective.” Perales v. Hawk, No. 99-5098, 1999 WL 728357, at *1 (D.C. Cir. Aug. 4, 1999).
Thus, because Lopez-Pena proceeds here under § 2241 instead of under § 2255, as he was
required to do, Lopez-Pena’s habeas petition must be dismissed.
Second, even if the Court construed the pending action as a habeas petition brought under
28 U.S.C. § 2255, it would still need to be dismissed. Under 28 U.S.C. § 2255(e), “[a]n
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application for a writ of habeas corpus . . . shall not be entertained if it appears that the applicant
has failed to apply for relief, by motion, to the court which sentenced him.” Although this rule
admits of narrow exceptions, Lopez-Pena has failed to allege any facts that might trigger such an
exception. See 28 U.S.C. § 2255(e) (exception for cases where “remedy by motion is inadequate
or ineffective to test legality of his detention”). As a result, because this is not the court which
sentenced Lopez-Pena, it cannot entertain his petition. See Taylor v. U.S. Bd. of Parole, 194
F.2d 882, 883 (D.C. Cir. 1952).
Finally, even if Lopez-Pena’s petition may be brought under § 2241, as he insists, it
would likewise have to be dismissed as well. “[T]he law of this circuit is clear that ‘[a] district
court may not entertain a habeas corpus action unless it has personal jurisdiction over the
custodian of the prisoner.’” Chatman-Bey v. Thornburgh, 864 F.2d 804, 810 (D.C. Cir. 1988)
(citing Guerra v. Meese, 786 F.2d 414, 415 (D.C. Cir. 1986)); see also Blair–Bey v. Quick, 151
F.3d 1036, 1039 (D.C. Cir. 1998). Because a prisoner’s custodian is normally the warden of the
facility at which the prisoner is being incarcerated, see, e.g., Fletcher v. Reilly, 433 F.3d 867, 875
(D.C. Cir. 2006), the general rule is that a § 2241 motion must be brought in the judicial district
where the prisoner is incarcerated—that is, the judicial district in which the custodian resides,
see, e.g., In re Tripati, 836 F.2d 1406, 1407 (D.C. Cir. 1988); see also Day v. Obama, No. 15-cv-
671, 2015 WL 2122289, at *1 (D.D.C. May 1, 2015), aff’d Day v. Trump, 860 F.3d 686 (D.C.
Cir. 2017) (“This ‘district court may not entertain a habeas petition involving present physical
custody unless the respondent custodian is within its territorial jurisdiction.’” (quoting Stokes v.
U.S. Parole Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004)); cf. Rumsfeld v. Padilla, 542 U.S.
426, 444, (2004) (“By definition, the immediate custodian and the prisoner reside in the same
district.”). Lopez-Pena is currently imprisoned in the Middle District of Pennsylvania. See Dkt.
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7 at 1. That is not here. The Court, therefore, is “without authority to grant the relief requested,”
Judd v. Gonzales, No. 13-cv-1504, 2013 WL 5615049, at *1 (D.D.C. Oct. 15, 2013), and must
accordingly dismiss Lopez-Pena’s habeas corpus petition.
As noted above, it is also possible to construe portions of Lopez-Pena’s pleading as
alleging claims that do not sound in habeas, and the government has yet to respond to those
portions of the pleading. The Court may, however, dismiss a complaint sua sponte where its
claims “are too insubstantial to invoke federal court jurisdiction.” Ord v. District of Columbia,
587 F.3d 1136, 1144 (D.C. Cir. 2009). As the Supreme Court has explained:
Over the years this Court has repeatedly held that the federal courts are without
power to entertain claims otherwise within their jurisdiction if they are ‘so
attenuated and unsubstantial as to be absolutely devoid of merit,’ Newburyport
Water Co. v. Newburyport, 193 U.S. 561, 579 (1904); ‘wholly insubstantial,’
Bailey v. Patterson, 369 U.S. 31, 33 (1962); ‘obviously frivolous,’ Hannis
Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910); ‘plainly unsubstantial,’
Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); or ‘no longer
open to discussion,’ McGilvra v. Ross, 215 U.S. 70, 80 (1909).
Hagans v. Lavine, 415 U.S. 528, 536 (1974). The D.C. Circuit has further elucidated:
To warrant dismissal for insubstantiality, claims [must] be flimsier than doubtful
or questionable—they must be essentially fictitious. Although we have said that
the Rule 12(b)(1) substantiality doctrine is, as a general matter, reserved for
complaints resting on truly fanciful factual allegations, legal claims may be so
insubstantial as to deprive federal courts of jurisdiction if prior decisions
inescapably render the claims frivolous. That said, previous decisions that
merely render claims of doubtful or questionable merit do not render them
insubstantial. Thus, to qualify as insubstantial, a claim’s unsoundness must so
clearly result from the previous decisions of the Supreme Court as to foreclose
the subject and leave no room for the inference that the question sought to be
raised can be the subject of controversy.
Ord, 587 F.3d at 386 (cleaned up); see also Roum v. Bush, 461 F. Supp. 2d 40, 46 (D.D.C. 2006)
(“Complaints that are comprised of ‘fanciful claims’ and ‘bizarre conspiracy theories’ are
generally subject to dismissal on that basis.” (quoting Bestor v. Lieberman, No. 03-cv-1470,
2005 WL 681460, at *1 (D.D.C. Mar. 11, 2005))); Tate v. Burke, 131 F.R.D. 363, 365 (D.D.C.
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1990) (dismissing pro se complaint sua sponte where the complaint made clear that there was
“[un]disputedly no factual and legal basis for the asserted wrong”).
Such is the case here. Apart from his habeas corpus claim, the only other claim Lopez-
Pena raises is that federal prosecutors should indict every judge in the country for unspecified
but purportedly unlawful conduct related to the penal system. Dkt. 1 at 131. The nature of
Lopez-Pena’s claim is both undecipherable and frivolous. He offers no factual or legal basis to
support it, and there exists neither. An Article-III-wide conspiracy to unlawfully imprison
individuals is “fanciful” and “fictitious”—not factual. Ord, 587 F.3d at 386. And as to the law,
it has long been made clear that, at least with respect to decisions not to prosecute, “the
Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute
a case[.]” United States v. Nixon, 418 U.S. 683, 693 (1974) (citing Confiscation Cases, 7 Wall.
454 (1869)). The Court will therefore dismiss Lopez-Pena’s complaint for want of subject-
matter jurisdiction.
Finally, Lopez-Pena seeks leave to conduct discovery pursuant to Federal Rules of Civil
Procedure 26 and 36, Federal Rule of Criminal Procedure 6, and 28 U.S.C. § 2241. Dkt. 13.
The Court will deny this motion as moot given its dismissal of Lopez-Pena’s complaint and
habeas petition.
CONCLUSION
For the foregoing reasons, the Court will dismiss Lopez-Pena’s petition for writ of habeas
corpus and will dismiss the remaining non-habeas claims that Lopez-Pena raises.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: May 28, 2021
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