United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
DISMISS HABEAS PETITION
J. Shelby Chief District Judge.
Edwin Mitchell Pirela Sr., seeks habeas-corpus relief under
28 U.S.C.S. § 2241 (2019). He asserts two grounds: (1)
ineffective assistance of counsel in a civil-rights case
brought by a different inmate, Ramirez v. Robinson,
2:11-CV-1199 (D. Utah Dec. 29, 2011); and (2) the state
prison's Sex Offender Treatment Program (SOTP) is used to
punish, not cure, inmates. (Doc. No. 2.)
requests the following remedies: “reinstate
Ramirez”; “reassess” his IQ;
immediate unconditional release; order Utah Board of Pardons
and Parole (BOP) not to condition release upon completion of
program; and money damages. (Id.)
2241 reads in pertinent part: “The Writ of habeas
corpus shall not extend to a prisoner unless . . . [h]e is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C.S. § 2241(c)(3)
(2019). 2241 petitions “are used to attack the
execution of a sentence, in contrast to § 2254 habeas .
. . proceedings, which are used to collaterally attack the
validity of a conviction and sentence.” McIntosh v.
U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir.
1997) (citations omitted).
move for dismissal, urging the jurisdictional basis that this
is an impermissible “second or successive [habeas]
application.” 28 U.S.C.S. § 2244(b) (2019).
However, “§ 2244(b) . . . concern[s] only habeas
corpus applications brought under § 2254 and not habeas
petitions brought under § 2241.” Stanko v.
Davis, 617 F.3d 1262, 1269 n.5 (10th Cir. 2010).
Therefore, “the requirement for prior circuit
authorization contained in § 2244(b)(3) does not apply
to habeas petitions brought under § 2241.”
Respondents' jurisdictional arguments are not well taken,
it is true that this petition must be dismissed for other
ASSISTANCE OF COUNSEL
first contends that he received ineffective assistance of
counsel in a civil-rights case brought by a different inmate.
Ramirez, 2:11-CV-1199. In that case, Plaintiff
Ramirez asserted his federal constitutional rights were
violated when the State did not accommodate his known
disability as Plaintiff Ramirez tried to complete SOTP.
Id., Doc. No. 66. The court appointed pro
bono counsel for Plaintiff Ramirez. Id., Doc.
successfully moved to join the action, with the court
requesting that Plaintiff Ramirez's appointed counsel
evaluate if they could “accept the joint representation
of Mr. Pirela with Mr. Ramirez without creating a conflict of
interest, and if they can and are willing to accept the
representation, to so advise the court and make any
procedural filings necessary to properly assert claims on
behalf of Mr. Pirela.” Id., Doc. No. 44.
counsel evaluated the potential joint representation of
Pirela and Ramirez, counsel wrote a letter explaining why
joint representation would not “be prudent.”
Id., Doc. No. 50. Noting that Petitioner's
claims were “focused on the constitutionality of
‘required' participation in [SOTP], ” the
court concluded that Petitioner's claims were
“therefore not closely related, or even similar”
to Plaintiff Ramirez's. So, the court decided “that
joinder would unduly delay and prejudice the resolution of
Plaintiff[ Ramirez's] claims, ” severing and
dismissing without prejudice Petitioner's claims.
Id., Doc. No. 66. The court specifically stated,
“Pirela may re-file his claims in a separate case if he
reviewed this scenario, the Court concludes that
Petitioner's challenge to the execution of his sentence
on the ground of ineffective assistance of counsel is
meritless. First, “the right to counsel in a civil case
is not a matter of constitutional right under the Sixth
Amendment.” Cullins v. Crouse, 348 F.2d 887,
889 (10th Cir. 1965). Second, counsel in Ramirez was
never representing Petitioner, but was instead representing
Plaintiff Ramirez. Ramirez, Doc. No. 44 (“The
court requests that counsel for Plaintiff Ramirez investigate
whether they can accept the joint representation of
Mr. Pirela with Mr. Ramirez.”) (emphasis added);
id., Doc. No. 50 (Plaintiff Ramirez's
counsels' letter) (“We do not believe it would be
prudent to undertake the representation of Mr. Pirela in this
matter.”). Third, on January 13, 2015, when dismissing
Petitioner without prejudice from Ramirez, the Court
specifically invited Petitioner to proceed with a separate
lawsuit if he wished. Id., Doc. No. 66. However,
Petitioner did not file another lawsuit with this Court until
this one--more than three years later on May 1, 2018. (Doc.
No. 1.) Finally, Petitioner's challenge is not to the
unconstitutional execution of his state criminal sentence but
to his alleged lack of proper representation in a separate
civil-rights case from which he was dismissed as a joined
alleges that SOTP “is only to punish, ” not to
cure. (Doc. No. 2.) He further appears to contend that he was
essentially forced to participate in SOTP by threats of
“early lockdown, ” “commit[ment] without
employment resources, ” and “ability to afford
safe hygienes; food service etc.” (Id.)
Petitioner states that “[i]t is a norm within this sex
offenders program to fully admit and accept responsibilities
whether I'm fully responsible or not of the crime I'm
said to have been convicted.” (Id.) Fatal to
his § 2241 habeas claim, Petitioner does not say how any
of these bald allegations show that “[h]e is in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C.S. § 2241(c)(3) (2019).
in his “Request for Relief, ” he does ask the
Court to “order the [BOP to] adopt the upholdings [sic]
of the United States Supreme Court in that of Tapia v.
United States, ” 564 U.S. 319 (2011). (Doc. No. 2,
at 8.) Presumably, Petitioner refers to the Supreme
Court's holding that 18 U.S.C.S. § 3582(a) (2019)
precluded federal district courts from imposing or
lengthening a prison term to promote a defendant's
rehabilitation. Tapia, 564 U.S. at 335. However,
this holding does nothing to help Petitioner: (A) It
interprets a federal statute not at issue in Petitioner's
imprisonment under Utah state law. And (B) Petitioner's
prison sentence has not been increased by BOP based on his
lack of participation in SOTP. Petitioner's sentence was
set in July 2001 at fifteen-years-to-life. (Doc. No. 7, at
2.) Utah's ...