UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JULIO CESAR LOPEZ-PENA,

Petitioner,

v. Civil Action No. 20-1889 (RDM)

MERRICK B. GARLAND, 1

Respondent.

MEMORANDUM OPINION

Julio Cesar Lopez-Pena, a federal prisoner, has filed a pro se petition for a writ of habeas

corpus pursuant to

. Dkt. 1 at 10. In his petition, Lopez-Pena also seeks to

compel the government to investigate and subsequently to indict every federal district and

appellate court judge, as well as all nine Justices of the Supreme Court, for “participating in [an]

ongoing criminal racketeering conspiracy,” which Lopez-Pena refers to as “the ‘Incentivized

Penal System.’” 2

.

On September 23, 2020, the government filed a response to Lopez-Pena’s petition, asking

the Court to dismiss it. Dkt. 7. As the government recognized, however, only the odd-numbered

pages of Lopez-Pena’s petition were initially filed on the docket (this occurred due to a copying

error in the Clerk’s Office).

. As a result, the substance of Lopez-Pena’s claims was, “for

the most part, incomprehensible.”

The Clerk’s Office filed a full version of Lopez-Pena’s

petition on April 7, 2021. Dkt. 1.

1 Merrick B. Garland, the current Attorney General, is substituted for William P. Barr pursuant to Federal Rule of Civil Procedure 25(d). 2 Pursuant to the rule of necessity, see United States v. Will,

, 211–17 (1950), the undersigned will not recuse from this matter. 1 For the reasons set forth below, the Court concludes that Lopez-Pena’s habeas petition

must indeed be dismissed. In addition, although the government has not yet responded to the full

version of Lopez-Pena’s complaint, the Court will sua sponte dismiss Lopez-Pena’s remaining

claims, which seek to compel federal prosecutors to indict the federal judiciary, for want of

subject-matter jurisdiction.

I. BACKGROUND

On June 3, 2008, following a jury trial in the United States District Court for the Southern

District of New York, Lopez-Pena was convicted of conspiracy to distribute five kilograms or

more of cocaine into the United States, in violation of

, and was subsequently

sentenced to 540 months of imprisonment, to be followed by five years of supervised release.

Dkt. 7 at 1; see also United States v. Lopez–Pena, No. 05-cr-191,

(S.D.N.Y.

May 23, 2008); United States v. Lopez-Pena, No. 10-cv-7381,

, at *1

(S.D.N.Y. May 2, 2011); United States v. Lopez-Pena, No. 05-cr-191,

(S.D.N.Y. Mar. 7, 2018). The United States Court of Appeals for the Second Circuit

subsequently affirmed his conviction and sentence. See United States v. Sanpedro,

(2d Cir. 2009). Lopez-Pena is currently incarcerated at the Federal Correctional Institution

Allenwood in White Deer, Pennsylvania. Dkt. 7 at 1.

Since his conviction, Lopez-Pena has repeatedly sought post-conviction relief. Relevant

to this petition, in 2011, Lopez-Pena sought to vacate his sentence pursuant to

in the Southern District of New York, see Lopez-Pena,

, at *1, and, in 2020,

he filed a habeas petition pursuant to

in the Middle District of Pennsylvania,

see Lopez-Pena v. Barr, No. 20-cv-183,

(M.D. Pa. Mar. 6, 2020);

see also Lopez-Pena v. Barr, No. 20-cv-183,

, at *1 (M.D. Pa. Apr. 15, 2020).

2 Both the § 2255 motion and the § 2241 petition were denied. See Lopez-Pena,

, at *1 (§ 2255); Lopez-Pena,

(§ 2241).

Lopez-Pena has now filed another habeas petition pursuant to

before

this Court. He argues that his conviction and sentence are unlawful for various reasons,

challenging principally the government’s authority to “subject [him] to federal investigation,

indictment, prosecution, trial, judgment, conviction, and detention/imprisonment.” Dkt. 1 at 35

(capitalization altered). Lopez-Pena also seeks to compel the government to investigate and

subsequently to indict every federal judge in the country, who, Lopez-Pena alleges, have

knowledge of and have failed to report a litany of criminal acts related to what he calls the

“ongoing criminal racketeering enterprise known as the ‘incentivized penal system.’”

at 131–

35 (alleging violations of

, 3, 4, 201, 241, 242, 371, 1001). Lopez-Pena requests

that information related to these alleged criminal acts be presented to the special grand jury for

the District of Columbia.

at 129 (citing

).

On September 23, 2020, the government timely filed a response to Lopez-Pena’s petition,

requesting that the Court dismiss it. Dkt. 7 at 2. The Court issued a Fox/Neal order advising

Lopez-Pena to respond to the government by November 13, 2020. Dkt. 9. Lopez-Pena

responded to the government on October 16, 2020, Dkt. 12, and subsequently filed a Motion for

Leave to Conduct Discovery pursuant to Federal Rules of Civil Procedure 26 and 36, Federal

Rule of Criminal Procedure 6, and

, Dkt. 13.

II. ANALYSIS

Under

, a court “entertaining an application for a writ of habeas corpus”

must award the writ or “issue an order directing the respondent to show cause why the writ

should not be granted, unless it appears from the application that the applicant or person detained

3 is not entitled thereto.” Here, the Court concludes that because Lopez-Pena’s petition must be

brought as a

motion filed with the court which imposed his sentence, he is not

entitled to the writ and his § 2241 habeas petition will be dismissed. The Court further concludes

that even if Lopez-Pena’s petition could be brought under § 2241, instead of § 2255, it must be

dismissed because Lopez-Pena’s custodian lies outside the territorial jurisdiction of the Court.

To start, it is well established that a challenge to the petitioner’s federal conviction or

sentence must be made in the sentencing court under

. See Pradelski v. Hawk-

Sawyer,

, 1–2 (D.D.C. 1999) (“Section 2255 . . . expressly encompasses both

challenges to the jurisdiction of the federal court imposing sentence and attacks on the

constitutionality of a federal prisoner’s conviction.”). “[O]nly thereafter, and if the prisoner can

show that the remedy under § 2255 is inadequate or ineffective, [may] the challenge . . . be

brought under

as a petition for a writ of habeas corpus lodged in the district

court that has personal jurisdiction over the prisoner’s immediate custodian.” Twitty v. Holder,

No. 10-cv-174,

, at *1 (D.D.C. Jan. 29, 2010) (citing

and

Wilson v. Office of Chairperson, D.C. Bd. of Parole,

(D.D.C. 1995)).

“Even when a

habeas is available to a federal prisoner,” however, “he must

seek the writ in the district where his custodian is found.” Tennille v. Ashcroft, No. 02-5256,

, at *1 (D.C. Cir. Sept. 20, 2002) (per curiam) (citation omitted).

Here, Lopez-Pena disavows bringing a motion under

. Dkt. 1 at 13–14.

Instead, he asks the Court to issue a writ of habeas corpus pursuant to

, arguing

that the Attorney General lacked authority to “subject [him] to federal investigation, indictment,

prosecution, trial, judgement, conviction, and detention/imprisonment.” Dkt. 1 at 35. Lopez-

Pena argues that his claim does not fall within the scope of § 2255 because he is contesting only

4 the legality of his detention, not his conviction or sentence, and because he is not challenging the

jurisdiction of his sentencing court, but rather the “jurisdiction” of the Attorney General. Id. at

13–14.

This argument fails for multiple reasons. First, despite his protests to the contrary,

Lopez-Pena’s claim is a challenge to his conviction and the resulting sentence. That is, even

under Lopez-Pena’s own theory of the case, his detention is unlawful because (1) the attorney

general lacked authority to prosecute him, Dkt. 12 at 6; (2) the trial court was without

jurisdiction over his case, id.; (3) “[t]he only relevant documents [justifying his detention] . . .

[were] essentially forged to illegally incarcerate him,” id. at 7; and (4) “the procedures used to

detain” him were unlawful, id. at 7–8. Lopez-Pena’s claim therefore falls within § 2255, see

(a) (authorizing courts to provide relief to prisoners detained under a sentence

imposed by a court “without jurisdiction to impose such sentence” or on “the ground that the

sentence was imposed in violation of the Constitution or laws of the United States”), and cannot

be raised in a § 2241 petition unless the § 2255 remedy would either be “inadequate or

ineffective,” id. § 2255(e); see also Larsen v. Garland, No. 20-cv-840,

, at *1

(D.D.C. Mar. 19, 2021); Fouche v. Mukasey, 296 Fed. App’x 74, 74 (D.C. Cir. 2008) (per

curiam). Nor does Lopez-Pena satisfy either of those conditions; the prospect that his claim is

likely to fail on the merits does not mean that the remedy provided in § 2255 is “inadequate or

ineffective.” Perales v. Hawk, No. 99-5098,

, at *1 (D.C. Cir. Aug. 4, 1999).

Thus, because Lopez-Pena proceeds here under § 2241 instead of under § 2255, as he was

required to do, Lopez-Pena’s habeas petition must be dismissed.

Second, even if the Court construed the pending action as a habeas petition brought under

, it would still need to be dismissed. Under

(e), “[a]n

5 application for a writ of habeas corpus . . . shall not be entertained if it appears that the applicant

has failed to apply for relief, by motion, to the court which sentenced him.” Although this rule

admits of narrow exceptions, Lopez-Pena has failed to allege any facts that might trigger such an

exception. See

(e) (exception for cases where “remedy by motion is inadequate

or ineffective to test legality of his detention”). As a result, because this is not the court which

sentenced Lopez-Pena, it cannot entertain his petition. See Taylor v. U.S. Bd. of Parole,

(D.C. Cir. 1952).

Finally, even if Lopez-Pena’s petition may be brought under § 2241, as he insists, it

would likewise have to be dismissed as well. “[T]he law of this circuit is clear that ‘[a] district

court may not entertain a habeas corpus action unless it has personal jurisdiction over the

custodian of the prisoner.’” Chatman-Bey v. Thornburgh,

(D.C. Cir. 1988)

(citing Guerra v. Meese,

(D.C. Cir. 1986)); see also Blair–Bey v. Quick,

(D.C. Cir. 1998). Because a prisoner’s custodian is normally the warden of the

facility at which the prisoner is being incarcerated, see, e.g., Fletcher v. Reilly,

(D.C. Cir. 2006), the general rule is that a § 2241 motion must be brought in the judicial district

where the prisoner is incarcerated—that is, the judicial district in which the custodian resides,

see, e.g., In re Tripati,

(D.C. Cir. 1988); see also Day v. Obama, No. 15-cv-

671,

, at *1 (D.D.C. May 1, 2015), aff’d Day v. Trump,

(D.C.

Cir. 2017) (“This ‘district court may not entertain a habeas petition involving present physical

custody unless the respondent custodian is within its territorial jurisdiction.’” (quoting Stokes v.

U.S. Parole Comm’n,

(D.C. Cir. 2004)); cf. Rumsfeld v. Padilla,

, (2004) (“By definition, the immediate custodian and the prisoner reside in the same

district.”). Lopez-Pena is currently imprisoned in the Middle District of Pennsylvania. See Dkt.

6 7 at 1. That is not here. The Court, therefore, is “without authority to grant the relief requested,”

Judd v. Gonzales, No. 13-cv-1504,

, at *1 (D.D.C. Oct. 15, 2013), and must

accordingly dismiss Lopez-Pena’s habeas corpus petition.

As noted above, it is also possible to construe portions of Lopez-Pena’s pleading as

alleging claims that do not sound in habeas, and the government has yet to respond to those

portions of the pleading. The Court may, however, dismiss a complaint sua sponte where its

claims “are too insubstantial to invoke federal court jurisdiction.” Ord v. District of Columbia,

(D.C. Cir. 2009). As the Supreme Court has explained:

Over the years this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of merit,’ Newburyport Water Co. v. Newburyport,

(1904); ‘wholly insubstantial,’ Bailey v. Patterson,

(1962); ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore,

(1910); ‘plainly unsubstantial,’ Levering & Garrigues Co. v. Morrin,

(1933); or ‘no longer open to discussion,’ McGilvra v. Ross,

(1909).

Hagans v. Lavine,

(1974). The D.C. Circuit has further elucidated:

To warrant dismissal for insubstantiality, claims [must] be flimsier than doubtful or questionable—they must be essentially fictitious. Although we have said that the Rule 12(b)(1) substantiality doctrine is, as a general matter, reserved for complaints resting on truly fanciful factual allegations, legal claims may be so insubstantial as to deprive federal courts of jurisdiction if prior decisions inescapably render the claims frivolous. That said, previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial. Thus, to qualify as insubstantial, a claim’s unsoundness must so clearly result from the previous decisions of the Supreme Court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.

Ord,

(cleaned up); see also Roum v. Bush,

(D.D.C. 2006)

(“Complaints that are comprised of ‘fanciful claims’ and ‘bizarre conspiracy theories’ are

generally subject to dismissal on that basis.” (quoting Bestor v. Lieberman, No. 03-cv-1470,

, at *1 (D.D.C. Mar. 11, 2005))); Tate v. Burke,

(D.D.C.

7 1990) (dismissing pro se complaint sua sponte where the complaint made clear that there was

“[un]disputedly no factual and legal basis for the asserted wrong”).

Such is the case here. Apart from his habeas corpus claim, the only other claim Lopez-

Pena raises is that federal prosecutors should indict every judge in the country for unspecified

but purportedly unlawful conduct related to the penal system. Dkt. 1 at 131. The nature of

Lopez-Pena’s claim is both undecipherable and frivolous. He offers no factual or legal basis to

support it, and there exists neither. An Article-III-wide conspiracy to unlawfully imprison

individuals is “fanciful” and “fictitious”—not factual. Ord,

. And as to the law,

it has long been made clear that, at least with respect to decisions not to prosecute, “the

Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute

a case[.]” United States v. Nixon,

(1974) (citing Confiscation Cases,

(1869)). The Court will therefore dismiss Lopez-Pena’s complaint for want of subject-

matter jurisdiction.

Finally, Lopez-Pena seeks leave to conduct discovery pursuant to Federal Rules of Civil

Procedure 26 and 36, Federal Rule of Criminal Procedure 6, and

. Dkt. 13.

The Court will deny this motion as moot given its dismissal of Lopez-Pena’s complaint and

habeas petition.

CONCLUSION

For the foregoing reasons, the Court will dismiss Lopez-Pena’s petition for writ of habeas

corpus and will dismiss the remaining non-habeas claims that Lopez-Pena raises.

A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: May 28, 2021

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