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Palubicki v. State

United States District Court, D. Vermont

December 19, 2016

Anthony John Palubicki, Petitioner,
v.
State of Minnesota and State of Vermont, Respondents.

          REPORT AND RECOMMENDATION (DOC. 4)

          John M. Conroy, United States Magistrate Judge.

         Petitioner Anthony John Palubicki, proceeding pro se, has filed a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus to vacate his State of Minnesota conviction for first-degree murder in violation of Minn. Stat. § 609.185(a)(1) (2006). (Doc. 3 at 64.) Following a jury trial, Palubicki was sentenced to life in prison. State v. Palubicki (Palubicki I), 700 N.W.2d 476, 480 (Minn. 2005). He is now in the custody of the Vermont Department of Corrections (DOC) via a prisoner exchange pursuant to the Interstate Corrections Compact (ICC), Vt. Stat. Ann. tit. 28 §§ 1601-21 (1969). In re Palubicki, No. 2015-127, 2015 WL 4771550, at *1 (Vt. Aug. 12, 2015). In his Petition, Palubicki contends that the Court should “vacate [his] illegal conviction and dismiss it with prejudice.” (Doc. 3 at 64.)

         Presently pending before the Court is a Motion filed by Respondent State of Vermont to either transfer Palubicki's Petition to the United States District Court for the District of Minnesota where venue and jurisdiction are proper (Doc. 4 at 6-8) or, in the alternative, dismiss Palubicki's Petition for failure to first seek permission to file from the United States Court of Appeals for the Eighth Circuit pursuant to the requirements of 28 U.S.C. § 2244(b)(3)(A), applicable to second or successive § 2254 petitions (id. at 5-6). The Respondent State of Vermont has also moved for an enlargement of time in which to file an Answer to the Petition. For the following reasons, I recommend that the Motion for Change of Venue be GRANTED or, in the alternative, the Motion to Dismiss be GRANTED.

         Background

         In 2005, a jury in Hubbard County, Minnesota, convicted Palubicki of “one count of first-degree premeditated murder in violation of Minn. Stat. § 609.185(a)(1) (2004) and two counts of first-degree felony murder in violation of Minn. Stat. § 609.185(a)(3) (2004)” for his involvement in the January 25, 2003 murder of 90-year-old Lorentz Olson. Palubicki I, 700 N.W.2d at 480. The evidence revealed that Palubicki killed Olson by bludgeoning him in the head with a hammer while Palubicki and his coconspirator, Scott Fix, attempted to rob Olson's home. Id. at 480-81. For Palubicki's role in Olson's murder, “[t]he trial court entered separate adjudications and life sentences for all three counts.” Id. at 482. Palubicki appealed his conviction to the Minnesota Supreme Court, “citing numerous procedural, evidentiary, and sentencing errors.” State v. Palubicki (Palubicki II), 727 N.W.2d 662, 664 (Minn. 2007). The Court dismissed all but one of these claims, holding that “the trial court erred when it entered separate adjudications and sentences for each of Palubicki's first-degree murder convictions.” Palubicki I, 700 N.W.2d at 491. It remanded the case to the trial court for “re-adjudication and sentencing.” Id.

         Following the Minnesota Supreme Court's decision, but before the Minnesota trial court heard Palubicki's case on remand, Palubicki filed a petition pursuant to 28 U.S.C. § 2254 with the United States District Court for the District of Minnesota. (Doc. 4-2 at 1.) Palubicki claimed that the Minnesota Supreme Court erred in affirming the trial court's decision to exclude evidence of misconduct of two trial witnesses, Fix and Palubicki's wife, Joy Cantrell. (Id. at 2.) Palubicki sought to introduce evidence of the robbery of a local gas station, which he alleged was committed by Cantrell and Fix. (Id.) The Court considered dismissing Palubicki's Petition for failure to exhaust all state court avenues of relief prior to filing, but it ultimately dismissed his claim on the merits. (Id. at 3-6.) The court concluded that the trial court and the Minnesota Supreme Court were not unreasonable in excluding the evidence. (Id. at 4-6.)

         On remand from the Minnesota Supreme Court's 2005 decision, the state trial court “entered a life sentence on Palubicki's first-degree premeditated murder conviction and vacated the [two] first-degree felony murder sentences.” Palubicki II, 727 N.W.2d at 664. Palubicki was ordered to pay restitution to the Minnesota Crime Victims Reparations Board for the cost of both cleaning the murder scene and Olson's funeral, and, to Olson's two adult children, the costs they incurred as a result of attending Palubicki's trial. Id. at 664-65. Palubicki appealed, claiming the trial court erred in calculating restitution and by “fail[ing] to vacate two of his three convictions.” Id. at 665. The Minnesota Supreme Court held that the trial court did not err in calculating the amount Palubicki owed in restitution, id. at 665-68, but that it did err when it failed to simultaneously vacate Palubicki's two first-degree felony murder convictions when it vacated the sentences for those convictions, id. at 668. Finally, “in the interest of judicial economy, ” the Court vacated Palubicki's two first-degree felony murder convictions. Id. In dismissing these convictions, the Minnesota Supreme Court noted “that if Palubicki's first-degree murder conviction is later vacated for any reason, the district court may then enter a first-degree felony murder judgment against Palubicki.” Id.

         Palubicki was eventually transferred to the DOC from the State of Minnesota pursuant to the ICC. In re Palubicki, 2015 WL 4771550, at *1. He then filed a petition for postconviction relief in Vermont Superior Court challenging his Minnesota conviction. Id. The Superior Court “dismissed [Palubicki's] petition for lack of subject[-]matter jurisdiction, ” because a court may only provide postconviction relief in “the county where the sentence was imposed, ” and Palubicki's sentence was imposed in Minnesota. Id. (quoting Vt. Stat. Ann. tit. 13 § 7131 (1973)) (citing Minn. Stat. Ann. § 590.01 (2005)). Palubicki then appealed the Superior Court's decision to the Vermont Supreme Court, which affirmed the lower court's dismissal. Id. The Vermont Supreme Court found the dismissal of the petition was warranted because, under the ICC, “out-of-state inmates are at all times subject to the jurisdiction of the sending state regarding transfer, release, and other matters concerning their conviction or original sentence.” Id. (citing Vt. Stat. Ann. tit. 28 § 1604(c), (e) (1969)).

         Just over a year after the Vermont Supreme Court affirmed the Superior Court's dismissal of Palubicki's petition for postconviction relief, Palubicki filed the instant § 2254 Petition with this Court. (Doc. 3.) In the 401-page Petition, Palubicki again attacks his original conviction on a number of different grounds, many of which are unclear. (Id.) The State of Vermont has responded, requesting that this Court either transfer the case to the United States District Court for the District of Minnesota or, in the alternative, dismiss Palubicki's Petition “for failure to seek permission in the Court of Appeals to file a successive petition.” (Doc. 4 at 2.)

         Discussion

         I. Whether the Court Should Transfer Palubicki's § 2254 Petition to the United States District Court for the District of Minnesota A district court may transfer a civil case[1] to a different venue “[f]or the convenience of parties and witnesses, ” or “in the interest of justice.” 28 U.S.C. § 1404(a) (2011). The court's ability to transfer venue, however, extends only to transferring the case to a venue “where it might have been brought.” Id. A case “might have been brought” in any district where the court had subject-matter jurisdiction, where the court had personal jurisdiction, and where venue was proper. See Smart v. Goord, 21 F.Supp.2d 309, 313 (S.D.N.Y. 1998). Therefore, the instant case may be transferred to the District of Minnesota if it “might have been brought” in that district originally and the Court deems such transfer in the best interest of the litigation for reasons of convenience and fairness.

         A. Subject-Matter Jurisdiction

         Federal district courts may exercise habeas jurisdiction over “a person in custody pursuant to the judgment of a State court” when the petitioner alleges that “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (1996). The District of Minnesota possesses subject-matter jurisdiction over Palubicki's claim, because Palubicki is currently incarcerated pursuant to his conviction and sentence under Minnesota state law, by Minnesota courts, and appears to allege some violation of his constitutional rights. (Doc. 3 at 39.)

         B. Personal Jurisdiction

         A prisoner may file his § 2254 petition in “any court with jurisdiction over the prisoner or h[is] custodian.” Smart, 21 F.Supp.2d at 314. This is because “[t]he writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973). A district court can properly hear a habeas petition, therefore, “[s]o long as the custodian can be reached by service of process.” Id. at 495; see also Wang v. Reno, 862 F.Supp. 801, 812 (E.D.N.Y. 1994) (“[T]his Court has jurisdiction over this matter if personal service can be effected upon the petitioner's custodian.”).

         Normally, “[a]bsent other considerations, the custodian should be considered to be the person who has day to day control over the petitioner and who can actually ‘produce the body.'” Id. (citing Ex Parte Endo, 323 U.S. 283, 306 (1944)). However, under certain circumstances, the “true custodian” can be someone other than the person who exercises day-to-day control over the petitioner. Smart, 21 F.Supp.2d at 314. For example, “a petitioner held in one State [may] attack a detainer lodged against him by another State, ” because “the State holding the prisoner in immediate confinement acts as agent for the demanding ...


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