Anthony D. Retic v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 2, 2007
No. 06-11799 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00920-CV-VEH-TMP
ANTHONY D. RETIC,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 2, 2007)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Anthony D. Retic appeals the district court’s denial of his “motion to
compel,” which the district court construed as a motion under 28 U.S.C. § 2255 or
a petition under 28 U.S.C. § 2241.1 We granted a certificate of appealability
(“COA”) on the following questions:
(1) whether the district court correctly construed the motion as a 28
U.S.C. § 2255 motion to vacate or a 28 U.S.C. § 2241 petition
and dismissed it because Retic was not in federal custody, and
(2) if not, whether Retic was entitled to relief under 28 U.S.C.
§ 2241(c)(1-4), or any other provision of law.
We review de novo questions of law presented in a COA. Medberry v.
Crosby, 351 F.3d 1049, 1053 (11th Cir. 2003). “The availability of habeas relief
under § 2241 presents a question of law that [we] review[] de novo.” Sawyer v.
Holder, 326 F.3d 1363, 1365 n.4 (11th Cir. 2003) (citation omitted). Further, we
liberally construe allegations contained in pro se habeas petitions. Holsomback
v. White, 133 F.3d 1382, 1386 (11th Cir. 1998).
I.
Retic, while proceeding pro se, filed a “motion to compel” in the district
court. He alleged that he was a party to a plea agreement with both federal and
state prosecutors; that the federal prosecutors violated the plea agreement by
failing to prosecute him; that the state prosecutors violated the plea agreement by
1
Retic filed his motion after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996). Therefore, the
provisions of the Act govern this appeal.
2
exacting a stiffer sentence than Retic had bargained for; and, finally, that he had
not breached the plea agreement.
Retic filed the motion against the United States, seeking specific
performance of the plea agreement. Specifically, he requested “that this Honorable
Court grant this Motion to Compel and compel the Government and State to honor
the original plea agreement with Specific Performance.” At the time he filed the
motion, Retic was in state custody, having pled guilty to a number of state
offenses. He was never convicted of a federal offense, and is not in federal
custody.
The district court treated the motion to compel as a habeas petition under 28
U.S.C. § 2241 or a motion under 28 U.S.C. § 2255. It then dismissed the motion
because the petitioner was not serving a federal sentence. The court declined to
treat the motion to compel as a habeas petition under sections 2241 and 2254
because Retic had not named his state custodian as a respondent.2
“Federal courts sometimes will ignore the legal label that a pro se litigant
attaches to a motion and recharacterize the motion in order to place it within a
different legal category.” Castro v. United States, 540 U.S. 375, 381, 124 S. Ct.
2The court in passing also relied on the fact that it “appears” that Retic had not exhausted
his state remedies. A district court may not, however, dismiss a habeas petition for failure to
exhaust state remedies before the state responds and either sets out an exhaustion defense or
waives exhaustion. Davis v. Dugger, 829 F.2d 1513, 1521 (11th Cir. 1987).
3
786, 791 (2003). “They may do so in order to avoid an unnecessary dismissal, to
avoid inappropriately stringent application of formal labeling requirements, or to
create a better correspondence between the substance of a pro se motion’s claim
and its underlying legal basis.” Id.The district court correctly recognized that Retic’s motion amounts to a
habeas claim, because it alleges that state and federal prosecutors
unconstitutionally breached the plea agreement, resulting in a longer sentence in
state court. The district court, however, recharacterized the motion as the wrong
kind of habeas action. The court treated it as a motion under § 2255. But section
2255 only applies to a “prisoner in custody under sentence of a court established
by Act of Congress.” Retic was not convicted of a federal offense, and is not
serving a federal sentence. Thus, by treating Retic’s motion under § 2255, the
district court effectively doomed the motion to failure.
Retic’s motion was most appropriately characterized as a habeas petition
under sections 2241 and 2254. That remedy extends to “a person in custody
pursuant to the judgment of a State court. . . on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254. See Medberry v. Crosby, 351 F.3d 1049, 1059 (11th Cir. 2003) (state
prisoners in custody pursuant to state court criminal conviction have a single
4
habeas corpus remedy, governed by § 2241 and § 2254). Retic is in state custody,
pursuant to a state sentence. His motion cited five cases in support of his argument
that the sentence was unconstitutionally imposed. See, e.g., Santobello v. New
York, 404 U.S. 257, 262, 92 S.Ct. 495, 499 (1971) (noting that breach of plea
agreement by prosecutor can violate due process). The motion clearly
demonstrated an intent to challenge his state convictions as unconstitutional.
Retic’s motion therefore amounts to a petition for habeas corpus, and should be
treated under § 2254 because he is a state prisoner serving a state sentence.
The district court declined to recharacterize the motion under § 2254
because Retic did not name the state custodian as respondent. While it is true that
Retic named the United States as respondent, the district court had an obligation to
determine whether the substance of the pro se pleading was cognizable under a
different statutory framework. United States v. Stossel, 348 F.3d 1320, 1322 n.2
(11th Cir. 2003). The substance of Retic’s prayer for relief asked the United States
to compel the state to honor its part of the agreement: in essence, a request for
relief from an allegedly unconstitutional state conviction. The mistaken caption
did not relieve the district court of its duty to construe a pro se pleading liberally.
Holsomback, 133 F.3d at 1386. The district court therefore should have
5
recharacterized Retic’s motion as a petition under § 2254.3
On remand, the district court should treat Retic’s motion as a habeas
petition. Currently, the restyled petition is defective because Retic did not name
his state custodian as respondent. See 28 U.S.C. § 2242; Rules Governing Section
2254 Cases, Rule 2(a) (“If the petitioner is currently in custody under a state-court
judgment, the petition must name as respondent the state officer who has
custody”). But rather than dismissing the petition without prejudice and subjecting
Retic to a certain statute of limitations bar, the district court should grant him a
reasonable time in which to move to amend his petition to add his state custodian
as respondent. See West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973)
(holding that district court erred by dismissing habeas petition on account of failure
to name proper respondent because it “is a procedural rather than a jurisdictional
defect, and it may be corrected by amendment of the petition”), affirmed in
relevant part by 510 F.2d 363 (5th Cir. 1975) (en banc).4 The district court should
3
The district court also treated Retic’s motion as a section 2241 habeas petition, but then
likewise concluded that such a petition should be dismissed because “there is no conviction or
sentence to be challenged.” This conclusion was in error. Section 2241 extends to a prisoner “in
custody in violation of the Constitution or laws or treaties of the United States,” regardless of
which sovereign imposed the sentence or has the prisoner in custody. 28 U.S.C. § 2241(c)(3).
Section 2254 then provides the rules a state prisoner serving a state sentence must follow in
bringing the habeas petition. Medberry, 351 F.3d at 1059.
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
6
also warn Retic of the consequences of recharacterizing his motion as a § 2254
petition.5 See Castro, 540 U.S. at 383, 124 S. Ct. at 792. If Retic fails to amend
within the time the district court gives him to name his state custodian as
respondent, the district court should dismiss the petition.6 We further note that this
opinion in no way comments on the merits of Retic’s habeas petition.
VACATED AND REMANDED WITH INSTRUCTIONS .
5
The record presently does not reflect that Retic has filed a prior § 2254 petition. We do
not, however, foreclose the possibility that Retic has filed a previous § 2254 petition, with all its
attendant consequences. See 28 U.S.C. § 2244(b) (providing the strict requirements for claims
presented in second or successive § 2254 petitions).
6
Retic also argues on appeal, by counsel, that his motion to compel should be
recharacterized as a petition for a writ of mandamus against the state and federal prosecutors.
Mandamus lies only when “no other adequate remedy is available.” Cash v. Barnhart, 327 F.3d
1252, 1258 (11th Cir. 2003). Retic potentially has a habeas remedy against his state custodian,
meaning mandamus is not proper at this time. We otherwise express no opinion regarding
Retic’s eligibility for mandamus relief.
7