Free Transfer Document - District Court of California - California

Case 3:08-cv-01526-LAB

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1 THOMAS P. O'BRIEN United States Attorney 2 CHRISTINE C. EWELL Assistant United States Attorney 3 Chief, Criminal Division WILLIAM A. CROWFOOT 4 Assistant United States Attorney OCDETF Section 5 California Bar Number: 134173 1400 United States Courthouse 6 312 North Spring Street Los Angeles, California 90012 7 Telephone: (213) 894-4465 Facsimile: (213) 894-0142 8 Email: [email protected] 9 Attorneys for Plaintiff UNITED STATES OF AMERICA 10 UNITED STATES DISTRICT COURT 11 FOR THE CENTRAL DISTRICT OF CALIFORNIA 12 13 ARIF ALI DURRANI, 14 15 Petitioner, v. ) ) ) ) ) ) ) ) ) ) ) CV No. 06-6281-PA (CR No. 99-470-PA) GOVERNMENT'S REPLY TO DEFENDANT'S OPPOSITION TO GOVERNMENT'S MOTION TO TRANSFER OR DISMISS DEFENDANT'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241

16 S.A. HOLENCIK, Warden 17 18 19 Respondent.

Respondent, S.A. Holencik, Warden, United States

20 Penitentiary-Victorville, by and through respondent's attorney of 21 record, the United States Attorney for the Central District of 22 California, hereby submits his reply to defendant's opposition to 23 government's motion to transfer or dismiss the Petition for Writ 24 of Habeas Corpus filed by petitioner ARIF ALI DURRANI pursuant to 25 28 U.S.C. § 2241. This reply is based on the attached Memorandum

26 of Points and Authorities, all files and records in this case, 27 /// 28

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1 and any further evidence as may be presented at any hearing on 2 this matter. 3 DATED: May 7, 2008 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 /S/ WILLIAM A. CROWFOOT Assistant United States Attorney Attorneys for Plaintiff United States of America THOMAS P. O'BRIEN United States Attorney CHRISTINE C. EWELL Assistant United States Attorney Chief, Criminal Division Respectfully submitted,

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1 2 3 4

MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION Petitioner Arif Ali Durrani ("defendant") is presently in

5 federal custody serving a 150-month sentence imposed by the 6 district court in the Southern District of California following 7 his conviction in 2006 in United States v. Arif Durrani, CR 058 1746-LAB (S.D. Cal. 2006). (CASD CR 127).1 On October 2, 2006,

9 defendant filed a petition for a writ of habeas corpus in the 10 instant case (CR 1; "Def's Mot."). He seeks an order of (Def's Mot. 1-

11 immediate release pursuant to 28 U.S.C. § 2241. 12 2). 13

In its motion to transfer or dismiss defendant's § 2241

14 petition the government argued that this Court lacks jurisdiction 15 to entertain defendant's petition and that it should be construed 16 as a petition under 28 U.S.C. § 2255 and transferred to the 17 Southern District of California where defendant was convicted and 18 sentenced or dismissed. The government argued that defendant is

19 imprisoned based on his conviction and sentence in United States 20 v. Arif Durrani, CR 05-1746-LAB (S.D. Cal. 2006). (CASD CR 127).

21 The indictment in this district, in United States v. Arif 22 23 24 25 26 27 28 "CR" refers to the Clerk's Record in the instant case, "CACD CR" refers to the Clerk's Record in United States v. Arif Durrani, CR 99-470-PA, "CASD CR" refers to the clerk's record in United States v. Arif Durrani, CR 05-1746-LAB (S.D. Cal. 2006), "08-55082 CR" refers to the Clerk's Record in Arif Ali Durrani v. S.A. Holencik, CA No. 08-55082 (9th Cir. 2008), and "08-70269 CR" refers to the Clerk's Record in Arif Ali Durrani v. United States District Court for the Central District of California, et al., CA No. 08-70269 (9th Cir. 2008). Each such reference is followed by the document control number which was obtained through PACER. -11

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1 Durrani, CR 99-470-PA (the "1999 indictment"), was dismissed with 2 prejudice on September 23, 2005 and this Court ordered defendant 3 released. (CACD CR 27). His subsequent arrest, detention and

4 transportation to the Southern District of California were based 5 on the arrest warrant issued in that district. 6 (CASD CR 2).

In his opposition to the government's motion ("Def's Opp."),

7 served on the government on April 23, 2008, defendant reiterated 8 that his § 2241 petition seeks to "correct [this Court's] 9 erroneous Release Order" of September 23, 2005. (Def's Opp. 2).

10 In essence, defendant argues that this Court, by ordering 11 defendant released after dismissal of the 1999 indictment in 12 effect deprived defendant of the opportunity to challenge the 13 legality of his arrest in that case. (Id.). This argument lacks

14 merit and this Court should stand by its initial determination to 15 construe defendant's petition as a § 2255 petition required to be 16 filed in the Southern District. 17 18 19 II STATEMENT OF FACTS A Statement of Facts is set forth in the government's motion

20 and is not repeated here. 21 22 23 A. 24 25 III ARGUMENT DEFENDANT'S PETITION SHOULD BE CONSTRUED AS A PETITION PURSUANT TO 28 U.S.C. § 2255 On September 23, 2005, this Court dismissed the 1999 But for

26 indictment against defendant and ordered him released.

27 the arrest warrant issued in the Southern District of California, 28 defendant would have been free to continue his journey to -2-

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1 Pakistan or to attempt to return to Mexico to contest the 2 legality of his expulsion. Instead, he was transported to the

3 Southern District to answer to charges stemming from facts and 4 circumstances unrelated to those which resulted in the 1999 5 indictment. After a protracted course of pre-trial litigation

6 and a jury trial, defendant now finds himself imprisoned, not 7 because this Court released him in error, or failed to provide 8 safe conduct out of the country, but, because he was unwilling to 9 present to the district court in the Southern District, as he 10 should have when he had the opportunity to do so, the claims he 11 raises here.2 12 Defendant implies that the Ninth Circuit, in remanding this

13 matter, determined that this Court erred in its July 16, 2007 14 determination that defendant's § 2241 petition was, in fact a 15 § 2255 petition, required to be filed in the district in which 16 defendant was convicted or sentenced. 17 Ninth Circuit did no such thing. (Def's Opp. at 11). The

On November 16, 2007, the Ninth

18 Circuit issued an order in which it found that, because the 19 Southern District had vacated an earlier judgment and allowed 20 defendant to withdraw his § 2255 motion in CV-06-1730 (S.D. Cal. 21 22 23 24 25 26 27 28 -3See, e.g., Case Status and Notice Order dated December 12, 2006, defendant's Withdrawal of Petition, filed January 3, 2007, and Amended Judgment dated October 12, 2007, in Arif Durrani v. S.A. Holencik, CV 06-1730-LAB (S.D. Cal. 2006), attached as Exhibits A, B and C, respectively, to the government's motion to transfer or dismiss defendant's petition in this case. The referenced exhibits address the Southern District's re-characterization of defendant's petition pursuant to 28 U.S.C. § 2241, which raised issues also raised in the instant case, as a § 2255 petition, and defendant's refusal to accept that re-characterization or to proceed with his petition.
2

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1 2006), his filing in the instant case was not successive, as this 2 Court had assumed in not transferring it to the Southern 3 District. (CR 10). In addition, the Ninth Circuit noted,

4 presumably for this Court's information and consideration, but 5 without further comment or analysis, that on September 10, 2007, 6 defendant had "filed a document [in the Ninth Circuit] stating 7 that [defendant's petition in the instant case] challenges, not a 8 Southern District decision, but rather a release order issued by 9 [this Court] in Case No. CR-99-470-PA." (Id.). The Ninth

10 Circuit then ordered defendant's motion transferred back to this 11 Court without limiting this Court's discretion. 12 (Id.).

This Court's July 16, 2007 determination that defendant had

13 filed a § 2255 claim in the wrong district continues to be 14 correct. Defendant's contention that he was extradited from

15 Mexico is unfounded and there is no merit to his argument, based 16 on the doctrine of specialty, that upon the dismissal of the 1999 17 indictment he should have been allowed to leave the United 18 States. In his opposition, defendant ignores the fact that had

19 he been extradited from Mexico, he would have records of those 20 proceedings upon which to rely. 21 There is also no basis in fact for defendant's contention Defendant was notified by the

22 that he was kidnaped in Mexico.

23 government of Mexico on June 14, 2005, that he was expelled from 24 that country for failure to maintain his immigration status. 25 (See Def's Opp. Appendix E, also attached with a translation as 26 Exhibit D to the government's motion to transfer or dismiss 27 defendant's petition). Defendant may disagree with that action

28 by the Mexican government, but this Court is not the place in -4-

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1 which to seek a remedy, nor is a mis-characterized § 2241 2 petition the vehicle. 3 In short, nothing about the circumstances of this case

4 required that this Court issue a release order in September 2005 5 shielding defendant from a subsequent arrest pursuant to the 6 Southern District warrant. Thus, defendant finds himself in

7 custody based on the conviction and sentence in the Southern 8 District and not as a result of any erroneous decision by this 9 Court. 10 11 12 III CONCLUSION For the foregoing reasons, the government respectfully

13 requests that the Court construe defendant's Petition for Writ of 14 Habeas Corpus pursuant to 28 U.S.C. § 2241 as a petition 15 challenging the legality of his conviction or sentence pursuant 16 to 28 U.S.C. § 2255 and, as such, transfer defendant's petition 17 to the Southern District of California, where defendant was 18 convicted and sentenced, or, alternatively, dismiss the petition 19 without prejudice. 20 DATED: May 7, 2008 21 22 23 24 25 26 27 28 -5Attorneys for Plaintiff United States of America /S/ WILLIAM A. CROWFOOT Assistant United States Attorney CHRISTINE C. EWELL Assistant United States Attorney Chief, Criminal Division Respectfully submitted, THOMAS P. O'BRIEN United States Attorney

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 service was: 15 I declare:

CERTIFICATE OF SERVICE

That I am a citizen of the United States and resident or employed in Los Angeles County, California; that my business address is the Office of United States Attorney, United States Courthouse, 312 N. Spring Street, Los Angeles, California 90012; that I am over the age of eighteen years, and am not a party to the above-entitled action; that I am employed by the United States Attorney for the Central District of California who is a member of the Bar of the United States District Court for the Central District of California, at whose direction I served a copy of:
GOVERNMENT'S REPLY TO DEFENDANT'S OPPOSITION TO GOVERNMENT'S MOTION TO TRANSFER OR DISMISS DEFENDANT'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241

[] Placed in a closed
16 17 18 19 envelope for collection & interoffice delivery addressed as follows:

[X] Placed in a sealed envelope
for collection & mailing via United States Mail, addressed as follows:

[] By hand delivery
addressed as follows:

[] By facsimile as follows: [] By federal express as follows:

[] By messenger as follows:
20 21 22 23 24 25 26 27 28

ARIF DURRANI (FED REG #09027-014) FCI VICTORVILLE MEDIUM I FCI VICTORVILLE MEDIUM I FEDERAL CORRECTIONAL INSTITUTION SATELLITE CAMP PO BOX 5300 PO BOX 5100 ADELANTO, CA 92301 ADELANTO, CA 92301

This certificate is executed on May 7, 2008, at Los Angeles, California. I certify under penalty of perjury that the

foregoing is true and correct. /S/ Roland Hernandez