United States District Court, D. Vermont
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 ...