Gray v. USA

• Court: District Court, D. New Hampshire
• Decided: January 15, 1998
• Docket: CV-97-545-SD
• Status: Published

Opinion

Gray v. USA CV-97-545-SD 01/15/98 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Alton N. Gray

v. Civil No. 97-545-SD

United States of America

O R D E R

In this petition for a writ of habeas corpus, brought

pursuant to 28 U.S.C. § 2255, pro se petitioner Alton N. Gray

seeks the return of property which apparently was taken as part

of a forfeiture proceeding related to his federal criminal

conviction in 1989. He contends that the taking of his property

in addition to sentencing him to jail constitutes double

jeopardy, in violation of the Fifth Amendment, and cruel and

unusual punishment, in violation of the Eighth Amendment. Gray

also claims that he was not represented by counsel during the

forfeiture proceedings, which violated his due process rights

guaranteed by the Fifth Amendment. The petition is before me to

determine whether it shall be served on defendant. See Rule 4(b)

of the Rules Governing § 2255 Proceedings (reguiring prompt

judicial review to determine whether the petition appears to be

facially valid or should be dismissed). As explained more fully

below, I conclude that "it plainly appears from the face of the

motion . . . that the movant is not entitled to relief" and summarily dismiss it. See id.

DISCUSSION

In his petition. Gray represents that he was convicted on

federal charges and sentenced to 144 months incarceration in

July, 1989. Gray claims that he agreed to forfeit property, as

part of his plea agreement, but that he was not provided an

attorney during the subseguent forfeiture proceedings. His

complaint is not with the forfeited property. It appears to be

limited to the loss of certain personal property which was

located in the premises that were forfeited. Gray states that he

filed a motion for the return of his personal property, pursuant

to Fed. R. Grim. P. 41(e), in June 1997. In July 1997, the U.S.

Attorney's office for the District of New Hampshire notified Gray

that the real property has been rented since December 1989. Gray

does not indicate whether the U.S. Attorney's office responded to

his inguiry regarding his personal property. In any event. Gray

now claims that he is without clothing, housekeeping articles and

home furnishings.

The relief Gray seeks is not available to him in a habeas

corpus petition. Prisoners in federal custody, like Gray, may

move the sentencing court "to vacate, set aside or correct the

sentence" imposed. See 28 U.S.C. § 2255 (providing for habeas

relief to federal prisoners). According to Gray, certain of his

personal belongings were taken, or misplaced or lost, by the government after it rented his forfeited property. The "loss" of

these items simply cannot be considered part of his sentence

which the court could now vacate, set aside or correct. See

United States v. Guzman, 85 F.3d 823, 830 (1st Cir. 1996)

(stating that a claim for lost property under Fed. R. Grim. P.

41(e) "is separable from, and has no effect upon, the appellant's

conviction and sentence.").

Instead, Gray may pursue his claims by filing a civil action

against the government for their return. See id. (explaining

that an independent civil action for the return of property may

be brought after a criminal case has been closed); see also

United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995)

(recognizing federal guestion jurisdiction over collateral

attacks on administrative forfeiture proceedings). It is worth

noting, however, that even if Gray were to bring such an action,

he could not assert his principal claim that the taking of his

personal belongings violates the Double Jeopardy Clause. The

United States Supreme Court recently explained its double

jeopardy jurisprudence and disavowed its holding in Halper v.

United States, 490 U.S. 435 (1989), as deviating from

traditional double jeopardy analysis. See Hudson v. United

States. __ U.S. __, 66 U.S.L.W. 4024, 4025 (Dec. 16, 1997).

In Hudson, the Court emphasized that the Double Jeopardy Clause

3 only prohibits multiple criminal punishments for the same

offense, and explained that a civil sanction may penalize without

constituting criminal punishment in violation of the Double

Jeopardy Clause. See id. at 4025-27 (citing precedent). Gray's

alleged loss of property simply cannot be considered a criminal

punishment and, therefore, could not be recognized as a violation

of the Double Jeopardy Clause.

CONCLUSION

Having concluded that this § 2255 motion shows that Gray is

not entitled to habeas relief, I order the petition for a writ of

habeas corpus be dismissed. See § 2255 Rule 4. I further deny

Gray's "Motion In Leave for In Forma Pauperis and For Appointment

of Counsel" (document no. 2) as moot.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

Date: January , 1998

cc: Gray N. Gray, pro se