INTRODUCTION
AND SUMMARY OF
ARGUMENT
Plaintiffs Leonard Peltier and Yorie Von Kahl seek a writ of mandamus
reversing the District Court’s order to transfer this
case to the District of Kansas. The District
Court erroneously ruled that Plaintiffs had filed a writ of habeas
corpus which had to be filed in Kansas where they are imprisoned. The
Trial Court clearly erred by ignoring the substance of
Plaintiffs’
case and the
relief sought.
The essence of Plaintiffs’ complaint concerns a series of actions
taken over the course of many years by various bureaucrats within
various branches of the Parole Commission, the Department
of Justice, and the Bureau of Prisons which has led to the
unconstitutional application of an unambiguous
federal statute, contrary to Congress’ express mandate, and which has
resulted in the illegal incarceration of numerous
federal prisoners. Mr. Peltier and Mr. Kahl seek, among other things,
monetary damages for past and present injuries for executive action
committed in violation of Congress’ express mandate and the United
States Constitution. See Chatman-Bey v. Thornburgh, 864
F. 2d 804, 810n. 5 and 6, 816-17 (D.C. Circuit 1988) (habeas analysis
“has no bearing on prisoner’s claims for money damages” and the
court’s “analysis goes solely to situations where the federal prisoner
is seeking non-monetary redress for alleged violations of federally
secured rights going to the lawfulness of his or her custody.”)
Moreover, courts have long recognized that federal prisoners
can seek declaratory and/or injunctive
relief to remedy unlawful and unconstitutional
behavior by the Defendants’ unconstitutional enforcement of statutes
in circumstances such as these. Geraghty v. United States Parole
Commission, 579 F.2d 238, 243 (3rd 1974); Greenfield
v. Scafati, 277 F. Supp. 644
(D. Mass. 1967), aff’d, 390 U.S. 713 (1968). See also
Howard v. Ashcroft, 248 F. Supp. 2d 518 (M.D.La. 2003).
This Court has authority to issue a writ of mandamus to reverse the
District Court’s erroneous transfer order under the All Writs Act (28
U.S.C.§ 1651(a)). Ukiah Adventist Hospital v. Federal Trade
Commission, 981 F.2d 543, 549 (D.C. Cir. 1992); In re Briscoe,
976 F.2d 1425, 1427 (D.C. Cir. 1992). In particular, the writ of
mandamus is available “to prevent abuses of a district court’s
authority to transfer a
case.” In re Sealed
Case, 141 F.3d 337, 329 (D.C. Cir.
1998), quoting, Ukiah, 981 F.2d at 549, and In re
Chatman-Bey, 718 F.2d 484, 486 (D.C. Cir. 1983). See also
Briscoe, 976 F.2d at 1427. See Also In re Parker,
131 U.S. 221, 226-27 (1889). As demonstrated below, this Court
should exercise its authority to correct, by a
writ of mandamus, the Trial Court’s clearly erroneous transfer of this
case.
ISSUES PRESENTED
This
case presents the issue of whether the Trial
Court erroneously ordered the transfer of the instant
case to the United States District Court of
Kansas on the erroneous ground that is sounds like a writ of habeas
corpus when in fact it is not a writ of Habeas Corpus in substance or
relief sought.
FACTS
In 1984, Congress passed the Sentencing Reform Act (“SRA”), arguably
the first comprehensive sentencing law reform for the federal system.
(S. Rep. 98-225, 1984 U.S.C.C.A.N. 3182, 3220).
The Comprehensive Crime Control Act of 1984 (hereinafter “CCCA”),
constituted several chapters within the SRA and represented the decade
long efforts by Congress to create a sentencing structure that would
eliminate disparity in sentencing, establish certainty as to release
from confinement, and abolish the Parole Commission and parole. The
Senate Report noted:
At present, the concepts of indeterminate sentencing and parole
release depend for their justification exclusively upon this model of
‘coercive’ rehabilitation. . . Recent studies suggest that this
approach has failed. Most sentencing judges, as well as the Parole
Commission, agree that the rehabilitation model is not an appropriate
basis for sentencing decisions.
(S. Rep. 98-225 at 3221, 3223.) The Senate Report continued:
The efforts of the Parole Commission to alleviate this disparity
unfortunately contributed to a second grave defect of present law: no
one is ever certain how much time a particular offender will serve if
he is sentenced to prison ... Thus, prisoners often do not really know
how long they will spend in prison until the very day they are
released. The result is that the existing Federal system lacks the
sureness that criminal justice must provide if it is to retain the
confidence of American society and if it is to be an effective
deterrent against crime.
Id. at 3232-3233. The Senate Report concluded:
The shameful disparity in criminal sentences is a major flaw in the
existing criminal justice system, and makes it clear, that the system
is ripe for reform. Correcting our arbitrary and capricious method of
sentencing will not be a panacea for all of the problems which
confront the administration of criminal justice, but it will
constitute a significant step forward.
The
bill, as reported, meets the critical challenge of sentencing reform.
The bill’s sweeping provisions are designed to structure judicial
sentencing discretion, eliminate indeterminate sentencing, phase-out
parole release, and make criminal sentencing fairer and more certain.
Id. at 3248 (emphasis added).
To address these issues, Congress
enacted Section 235(b)(3), effective
October 12, 1984, Lyons v. Mendez, 303 F.3d 285, 289 (3rd Cir.
2002),,
which mandated that “the Parole Commission shall set a
release date consistent with the applicable
parole guideline” for those remaining in its custody “before the
expiration of the five years,” at which point the Commission would be
dissolved. Congress retained the Commission for five years following
the effective date of the Act solely “to set
release dates for prisoners sentenced before that
date” emphasizing that by “the end of that period, the Parole
Commission would set final
release dates for all prisoners still in its
jurisdiction.” Senate Report No. 98-225, 98th Congress,
First Session, September 12, 1983, p. 56 n.82.
In enacting Section 235(b)(3), Congress thereby recognized the
inherent arbitrariness underlying parole decisions. As the United
States Supreme Court recognized in Mistretta v. United States,
488 U.S. 361, 366 (1989):
It is observed that the indeterminate-sentencing system had
“unjustified” and “shameful” consequences. The first was the great
variation among sentences imposed by different judges upon similarly
situated offenders. The second was the uncertainty as to the time the
offender would spend in prison.
On December 7, 1987, over three years later, Congress amended Section
235(b)(3) to repeal the release criteria and to restore the criteria
under 18 U.S.C. 4206, Public Law 100-182,§2. Because this amendment
substantially changed existing law, Congress explicitly provided under
the “General Effective Date” of the act at section 26: “The
amendments made by this Act shall apply with respect to offenses
committed after the enactment of this Act.” 101 Stat. 1272
(Emphasis added.)
Based on the original version of Section 235(b)(3) which became
effective October 12, 1984, the Commission was abolished as of
midnight on October 11, 1989,
and prisoners, such as the Plaintiffs, would have each possessed
release dates and would have, in fact, been released long ago.
WHY THE WRIT SHOULD ISSUE
-
CASE
LAW ESTABLISHES THAT THIS CASE WAS PROPERLY BEFORE THE DISTRICT
COURT.
Plaintiffs properly brought this case in the District Court. The
Amended Complaint seeks damages, declaratory relief and injunctive
relief concerning Defendants’ unconstitutional application of Section
235(b)(3), contrary to Congress’ express mandate. Defendants have
ignored Congress’ mandate that Section 235(b)(3) applies to prisoners
such as Mr. Peltier and Mr. Kahl and, in doing so, have violated the
ex post facto, bill of attainder, and due process clauses of the
United States Constitution. Plaintiffs brought this action directly
under the United States Constitution to seek enforcement against
Defendants’ wrongful conduct which has spanned many years and involves
the actions of numerous Commissioners, United States Attorney
Generals, and Directors of the Bureau of Prisons. Put simply, it is
an action brought directly under provisions of the United States
Constitution which action seeks enforcement of Congress’ express
mandate and has wide ranging effect upon the rights of numerous
federal prisoners.
Plaintiffs seek declaratory relief that Defendants have wrongfully
applied Public Law 100-182, Section 2, enacted on December 7, 1987,
and that the rights created by the original Section 235(b)(3) must be
enforced, nunc pro tunc. They also specifically seek damages
and injunctive relief prohibiting Defendants from applying the Public
Law 100-182, Section 2, enacted on December 7, 1987. Through its
equitable powers, this District Court should have enforced the rights
created by the original Section 235(b)(3), nunc pro tunc.
Courts have made clear that Habeas Corpus is not the only remedial
option available to the Plaintiffs in these circumstances. See
Geraghty, 579 F.2d at 243; Greenfield, 277 F. Supp. 644.
Greenfield and Geraghty are particularly instructive
here.
In Greenfield, 277 F.Supp. 644, the Plaintiff sought an
injunction against the enforcement of a sentence under a state statute
claiming it was unconstitutional and also filed a motion for bail.
The Court approved this procedure, granted bail and ultimately ruled
that the statute violated the ex post facto provisions of the United
States Constitution. 277 F.Supp. at 644-45. As such the Court issued
the requested injunctive relief. 277 F.Supp. at 646. This case was
affirmed in its entirety by the United States Supreme Court. 390 U.S.
713 (1968). This is the very same procedure followed by the
Plaintiffs herein. Since it has been approved by the United States
Supreme Court, this case is properly before this Court.
Geraghty also compels the District Court to exercise jurisdiction over
this matter. In Geraghty, a federal prisoner challenged the
validity of parole guidelines utilized by the United States Parole
Commission. Contrary to the lower court’s ruling that Habeas Corpus
was the only remedy available to the prisoner, the Third Circuit ruled
that the action could properly be considered as one for declaratory
judgment which was an appropriate remedy. Geraghty, 579 F.2d at
243. In doing so, the Court reasoned that the instant case did not
raise issues of federal and state comity:
The Courts face no barriers resulting from federal-state relations in
adjudicating issues such as the ones before us, since the present
controversy involves the application of a federal statute by federal
authorities. And, unlike a Habeas Corpus action challenging state
confinement, no exhaustion has been statutorily mandated. Indeed, in
contrast to the situation in Preiser, [411 U.S. 475 (1973)]
Congress expressly contemplated declaratory actions to challenge the
provisions of the federal parole guidelines.
As in Geraghty, the instant action seeks a declaration that the
Parole Commission and the remaining Defendants have illegally applied
Section 235(b)(3) as originally enacted and as
amended. The complaint seeks declaratory and injunctive
relief against Defendants continuing to take
illegal activities against numerous federal prisoners, such as Mr.
Peltier and Mr. Kahl. As, acknowledged by the Geraghty Court,
this
relief falls within the United States Supreme
Court’s holding in Wolff v. McDonnell, 418 U.S. 539,
554-55(1974).
The Plaintiffs ultimately seek monetary damages for which habeas
corpus is not appropriate or available. Indeed, contrary to the
District Court’s order, Plaintiffs are entitled to bring their damage
claims under one of the very
cases
relied upon by the Court. Chatman-Bey,
864 F.2d at 810n. 5and 6, 817-18. The Chatman-Bey Court stated
that habeas analysis “has no bearing on prisoner’s claims for money
damages” and the court’s “analysis goes solely to situations where the
federal prisoner is seeking non-monetary redress for alleged
violations of federally secured rights going to the lawfulness of his
or her custody.” 864 F.2d at 810n. 5and 6. See also
approval of concurring opinion on this issue at 864 F.2d 817-18. For
those reasons, this
case should have proceeded in the District Court.
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THE UNITED STATES SUPREME
COURT DECISIONS FURTHER SUPPORT THAT THIS CASE WAS PROPERLY
BEFORE THE DISTRICT COURT.
The District Court’s reliance on Burke v. Hawk-Sawyer, 269
F.3d 1072 (D.C. Cir. 2001), was misplaced. Contrary to the Court’s
rationale in its Order, a “probalistic impact” on the duration of
custody alone cannot supplant a civil action and compel habeas review
only, not even with respect to a section 1983 claim brought by a
state prisoner in federal court. Fletcher v. District of
Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004) (limiting holding
of Chatman-Bey “to claims brought by federal prisoners.”)
The Supreme Court’s “trilogy” of Preiser v. Rodriguez, 411 U.S.
475 (1973), Heck v. Humphrey, 512 U.S. 477 (1994), and
Edwards v. Balistock, 520 U.S. 641 (1997), all established only
very limited holdings regarding state prisoner claims under
statutes enacted by Congress which stem exclusively from the post
Civil War Civil Rights and Habeas Corpus Acts – all of which dealt
with the role of federal courts overseeing state court matters. As
the Supreme Court noted, Section 1983 necessarily
intersected with the habeas statute, and the
Court had to reconcile Section 1983 actions with
the requirement that “federal Habeas Corpus requires that state
prisoners first seek redress in a state forum.” 512 U.S. at 480-81.
See also Nelson v.
Campbell, 541 U.S.___, ___, 158
L.Ed. 2d 924, 932 (2004) (State prisoner claims under Section
1983 “must yield” to the habeas statute concerning review of state
prisoner confinement.)
Neither the language, history or purposes of the habeas statute
confirm jurisdiction on this Court, (cf. 28 U.S.C. §1331), nor
do they address the issues presented by the Supreme Court’s “trilogy,”
which this Court suggests confine the Plaintiffs to a single (and in
this case clearly inadequate) remedy. This is particularly true
where, as here, the United States Constitution provides this Court
with inherent jurisdiction to remedy violations such as those
presented in this case. See e.g. Bivens v. Six Unknown Federal
Agents, 403 U.S. 388, 392, 396 (1971); Marbury v. Madison,
5 U.S. 137, 163-66 (1803) (citizen of United States who suffers
“injury” has a “right to resort to the laws of his country for a
remedy”).
It is also significant that both the Civil Rights
Act of 1871, now 42 U.S.C. §1983, and the Habeas Corpus Act of 1867,
now 28 U.S.C. §2241 (C)4 and (D) and 28 U.S.C. §2254, were enacted in
light of the Thirteenth, Fourteenth and Fifteenth Amendments and
involved the potential clash of sovereignty retained by the 10th
Amendment. The history of those statutes and their purposes are so
well known that repeating them here is not necessary. However, any
construction of the Civil Rights Act of 1871 and its progeny and the
federal-state comity issues arising from that Act formed the basis for
the “trilogy” of decisions by the United States Supreme Court.
Preiser, 411 U.S. at 491-93.
It is also critical that 42 U.S.C. §1983
“`creates a species of tort liability’” Heck, 512 U.S. at 483
(citing
cases), whereas 28 U.S.C. §1331 grants subject
matter jurisdiction in district courts for constitutional and federal
claims. Plaintiffs’ claims against Defendants arise predominantly
under the express terms of federal statutes, the ex post facto, bill
of attainder and due process clauses. Plaintiffs’ right to seek
redress for injuries suffered under those clauses arise directly
under the fundamental charter of this Country itself. Bivens,
supra; United States v. Lee, 106, 196 (1882);
Marbury, supra. With respect
to Plaintiffs’ federal statutory claims, they rest on Defendants’
failure to perform mandatory ministerial duties which Congress
required of Defendants, and they are based on Defendants’ failure to
follow Congress’ command to apply the amended statute to offenses
committed after December 7, 1987. Defendants, however, arbitrarily
applied the 1987 amendment to offenses committed before December 7,
1987 to the direct injury of Plaintiffs and, of
course, in direct violation of the above noted
constitutional provisions.
Even if the limited holdings of the Supreme Court “trilogy” could be
expanded to restrict
cases by federal prisoners and citizens arising
directly under the Constitution, even though
Congress has never expressly attempted to restrict theses rights, any
attempt to do so would violate the Constitution. Indeed, Plaintiffs
fall directly into the exception expressly
emphasized repeatedly by the Supreme Court. Heck, 512 U.S. at
486-87, (Heck held that “the § 1983 plaintiff must
`bring his action for damages whenever he shows that his conviction or
sentence has been `reversed’, `expunged’, or even `brought into
question’ by a proper authority”).
By Public Law 98-473, Title II, Chapter II, effective
October 12, 1984, Congress expressly required the Parole Commission to
establish
release dates for federal prisoners such as
Plaintiff’s “within” the respective “applicable
guidelines,” a simple ministerial task. Section
235(b)(3) mandated issuance of their
release dates within five years of October 12,
1984, with sufficient time for federal prisoners to exhaust appeals. Section
235(b)(2)(b)(1)(F) repealed all parole statutes pertaining the
Commission, giving them a five year period to complete their
ministerial duties. Sections 218 (a)(3) and 235
(a)(2)(b)(1)(A) repealed all statutory authority of the Executive
Branch to “hold” plaintiffs. Furthermore, Congress expressly found
the sentences under the pre-sentencing guideline system to be
inherently “arbitrary and
capricious.” Senate Report, No. 98-225, page 65.
Congress’ deliberate actions more than satisfied the “reverse,”
“expunged” and/or “brought into question” exceptions of the
“trilogy.” Arguably, Congress’ declaration that the sentences were
“arbitrary and capricious” rendered them null and void and declared
that the continued deprivation of plaintiffs’ liberty indisputably
violated the Due Process clause. Consequently, the Preiser,
Heck, Edwards rulings permit the instant suit even if
plaintiffs were state prisoners proceeding under 42 U.S.C. §1983.
Yet, the District Court erroneously relied upon cases involving state
prisoners to support its transfer of this case.
Unlike the state prisoner plaintiffs challenging state judgments in
Preiser, Plaintiffs are not challenging any judgments by these
proceedings. They seek damages for defendants’ refusal to perform
their ministerial duties under the original 235(b)(3). Defendants
have ignored that the amended section 235(b)(3)
applied to offenses committed after December 7, 1987 and instead have
applied it to plaintiffs in violation of the ex post facto, bill of
attainder and due process prohibitions, thereby
causing plaintiff’s severe injury.
Plaintiffs seek damages and request this Court to require the District
Court to exercise its inherent power to enforce the federal statutes
and constitutional prohibitions to prevent further injury to
Plaintiffs and the numerous other prisoners in their position.
Congress granted the District Court full jurisdiction to address
Defendants’ wrongs and to remedy them. 28 U.S.C. §1331; 28 U.S.C.
§1657; 28 U.S.C. §§2201-2202; 28 U.S.C. §1651. See United
States v. Will, 449 U.S. 200, 215 n. 19 (1980) (“`We have no more
right to decline the exercise of jurisdiction which is given, then to
usurp that which is not given.’”) “But 'it is … well settled that
where legal rights have been invaded, and a federal statute provides a
guarantee to citizens to sue for such invasion, federal courts may use
any available remedy to make good the wrong done.” Bivens, 403
U.S. at 396, quoting, Bell v. Hood, 327 U.S. 678, 684
(1946) (footnote omitted.) Any constitutional “limitation” of
“federal power… to citizens of the United States the absolute right”
to judicial enforcement, federal “`courts will…adjust the remedies so
as to grant the necessary
relief.’” 403 U.S. at 392, 396 (“federal courts
may use any available remedy to make good the wrong done.”) Since the
District Court had full jurisdiction granted it by Congress to
proceed, 28 U.S.C. §§1331, 1657, 2201-2202, 1651, it should have done
so and not have transferred the
case.
CONCLUSION
Plaintiffs seek a writ of mandamus to prevent the District Court from
transferring a
case properly before it. Plaintiffs are not
limited to habeas as their sole remedy in the circumstances presented,
and, even more significantly, the instant
case does not sound in Habeas Corpus. The
unlawful and continued ignorance by the Defendants regarding the
unambiguous statutes has violated not only the constitutional rights
of these Plaintiffs, but numerous federal prisoners in their same
situation, and thus has entitled the Plaintiffs to pursue the present
action in the District Court. Thus, Plaintiffs request this Court to
issue a writ of mandamus reversing the District Court’s transfer of
this
case and requiring it to proceed forthwith in the
District Court.
See Lyons,
303 F.3d at 289; Piekarski v. Bogan, 912 F.2d 224, 225 (8th
Cir. 1990).
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