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Hueso v. Barnhart

United States District Court, E.D. Kentucky, Southern Division, London

November 26, 2018

RAMON HUESO, Petitioner,
J. A. BARNHART, Warden, Respondent.



         Federal prisoner Ramon Hueso has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking relief from his sentence. [Record No. 1] The matter is pending for consideration of several issues related to the petition.


         After conducting an initial screening, the Court entered an Order on June 20, 2018, finding that, Hueso's petition required a response before his claims may be adjudicated. [Record No. 4] The Order directed that a response be filed within sixty days of service on the respondent. [Id.] The record reflects that the respondent received a copy of the petition on September 13, 2018. [Record No. 7]

         When no response had been filed by October 22, 2018, Hueso requested an entry of default against respondent, arguing that the applicable time limit for filing a response had expired. [Record No. 9] The Court denied Hueso's motion, noting that, as respondent did not receive a copy of the petition until September 13, 2018, the response time had not yet expired. [Record No. 10] Hueso then moved for reconsideration of the Order pursuant to Federal Rule of Civil Procedure 59(e). [Record No. 11]

         A court may grant relief under Rule 59(e) only to (1) correct a clear error of law; (2) account for newly discovered evidence; (3) accommodate an intervening change in controlling law; or (4) prevent a manifest injustice. American Civil Liberties Union of Ky. v. McCreary Co., Ky., 607 F.3d 439, 450 (6th Cir. 2010); Besser v. Sepanek, 478 Fed.Appx. 1001, 1001-02 (6th Cir. 2012). Hueso's motion does not satisfy any of these criteria.

         Hueso first argues that the Court erroneously calculated the time within which a response to his habeas petition must be filed. He contends that, because the warden is named as the respondent to the petition only in his official capacity, service of the petition on the United States Attorneys' Office and the United States Attorney General is sufficient for service upon the respondent. However, to serve an employee of the United States sued only in an official capacity, “a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the…employee.” Fed. R. Civ. P 4(i)(2) (emphasis added). Thus, for service to be complete, it must be made on the United States, and a copy of the petition must be sent to the respondent. Because the respondent did not receive a copy of the petition until September 13, 2018 [Record No. 7], the response was due within sixty days from that date. [Record No. 4] Therefore, this period had not expired prior to Hueso's motion for default.[1]

         Hueso next argues that the Court erred in allowing the respondent 60 days to file a response. He argues that 28 U.S.C. § 2243 requires the Court to “forthwith” issue the writ or require the respondent to show cause why it should not be granted within three days, or no more than twenty days. But this assertion is simply incorrect.

         Following screening of the petition, the Court possesses the discretion to require a response, but only when necessary and within a time it concludes was reasonable. Rule 4 of the Rules Governing Section 2254 Cases states that “the judge shall order the respondent to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.” Rule 1(b) of the 2254 Rules makes this rule applicable to proceedings under 28 U.S.C. § 2241. Under the Rules Enabling Act, 28 U.S.C. § 2072, Rule 4 takes precedence over § 2243. Hendon v. Burton, No. 2:14-CV-14023, 2014 WL 8186698, at *1 (E.D. Mich. Nov. 17, 2014). Thus, the Court acted within its discretion in providing 60 days within which respondent may file a response to the petition. For these reasons, the Court adheres to its prior conclusion that Hueso's motion for entry of default was properly denied.


         The Court previously screened Hueso's petition under 28 U.S.C. § 2243 and concluded that a response to the petition was needed before this matter could proceed. [Record No. 4] However, a petition will be denied “if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). In light of authority from the Sixth Circuit issued after the Court initial screening, it is now clear that Hueso is not entitled to relief. Thus, a response is no longer required, and the petition will be dismissed for the reasons outlined below.


         Following a jury trial in October 2009, Hueso was convicted in the United States District Court for the District of Alaska of one count of unlawfully and knowingly conspiring with another to distribute and possess with intent to distribute a controlled substance (i.e., 50 grams or more of a mixture and substance containing actual methamphetamine), in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Before trial, the United States filed a notice pursuant to 21 U.S.C. § 851 identifying Hueso's two prior drug felony drug convictions from the State of Washington. As a result, he was subject to enhanced statutory penalties under 21 U.S.C. § 841(b)(1)(A), including a maximum sentence of life imprisonment and a mandatory minimum sentence of 20 years. In January 2010, Hueso was sentenced to a term of imprisonment of 240 months. United States v. Hueso, No. 3:09-CR-48-RRB-1 (D. Alaska 2009).

         Hueso's conviction and sentence were affirmed on appeal to the United States Court of Appeals for the Ninth Circuit, United States v. Hueso, 420 Fed.Appx. 776 (9th Cir. 2011). Thereafter, his motions for post-conviction relief filed with the trial court, including a motion to vacate filed pursuant to 28 U.S.C. ยง 2255 and a motion for modification or reduction of sentence pursuant ...

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