Rezk v. NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
God, Michael A. Rezk
v. 	Case No. 18-cv-1247-PB
State of New Hampshire
REPORT AND RECOMMENDATION
Petitioner, a New Hampshire State Prison inmate who
identifies himself as “God, Michael A. Rezk,” has filed a
document (Doc. No. 1), that the court has docketed as a petition
for a writ of habeas corpus under 28 U.S.C. § 2254. 	Because
this matter has been opened as a habeas action, it is before the
court for preliminary review, to determine whether Rezk’s
petition is facially valid and may proceed, pursuant to Rules
1(b) and 4 of the Rules Governing Section 2254 Cases (Ҥ 2254
Rules”) and LR 4.3(d)(4)(A).
§ 2254 Rule 4 Standard
A judge is required to examine a petition for habeas
relief, and if “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief
in the district court, the judge must dismiss the petition.” §
2254 Rule 4; see also 28 U.S.C. § 2253 (writ may be issued,
“unless it appears from the application that the . . . person
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detained is not entitled to it”); § 2254 Rule 1 (allowing court
to subject § 2241 petitions to preliminary review under § 2254
Rule 4); McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal
courts are authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face.”). 	The court
construes Rezk’s pleadings liberally, in light of his pro se
status. 	See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
Discussion
I. 	Characterization of Petition
The court has docketed Rezk’s petition as a habeas
petition, because in it, he seeks release from incarceration,
alleging: “I was arrested for a warrant of armed robbery[] in
2001, I’ve yet too [sic] be charged and taken too [sic] trial
for armed robbery.” 	Doc. No. 1, at 1. 	Although Rezk’s initial
filing in this case was docketed as a § 2254 petition, as
explained in this Report and Recommendation, the petition does
not assert any claims challenging the state court judgment(s)
which resulted in his current incarceration. 	Accordingly, it is
not properly characterized as arising under § 2254, which grants
jurisdiction over a petition challenging custody pursuant to
state court “judgment” that violates inmate’s federal rights.
Instead, the petition is properly construed as asserted under 28
U.S.C. § 2241(c)(3), which grants this court jurisdiction to
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review an inmate’s custody that is alleged to violate the
Constitution, laws, and/or treaties of the United States.
II. Legal Insufficiency of Petition
A. 	Facts Underlying Rezk’s Present Incarceration1
Rezk was arrested on March 29, 2001 pursuant to a warrant
for an alleged January 2001 armed robbery. 	See State v. Rezk,
150 N.H. 483, 485, 840 A.2d 758, 760 (2004) (affirming Rezk’s
convictions on one receiving stolen property charge and two
felon in possession of a firearm charges, reversing Rezk’s
convictions on an attempted burglary charge and one felon in
possession of a firearm charge, and remanding for resentencing).
At the time of his March 29, 2001 arrest, Rezk, who had
previously been convicted of a felony. 	See id., 150 N.H. at
485, 493, 840 A.2d at 760, 766-67; see also State v. Rezk, No.
218-2001-CR-00953, -00954 (N.H. Super. Ct., Rockingham Cty.).
After his arrest, Rezk was taken to the police station and
questioned by the police. 	In exchange for a waiver of his
1The court gleans these facts from State v. Rezk, 150 N.H.
483, 485, 840 A.2d 758, 760 (2004), and takes judicial notice of
that case; Rezk does not reference them in his petition. 	Cf.
Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 55 (1st Cir. 2006)
(in determining sufficiency of complaint, court may consider
facts properly subject to judicial notice); see also Maher v.
Hyde, 272 F.3d 83, 86 n.3 (1st Cir. 2001) (federal courts may
take judicial notice of proceedings in other courts if relevant
to matters at hand).
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Miranda rights, the police promised Rezk, among other things,
that they would not charge him with the January 2001 armed
robbery that was the subject of the arrest warrant. 	See Rezk,
150 N.H. at 485, 840 A.2d at 760. 	The police never charged Rezk
with armed robbery. 	See id., 150 N.H. at 486, 840 A.2d at 761.
Rezk was charged with being a felon in possession of a
firearm and receiving stolen property, see id., 150 N.H. at 485,
493, 84 A.2d at 760, 766-67; see also State v. Rezk, No. 218-
2001-CR-00953, -00954 (N.H. Super. Ct., Rockingham Cty.), and
convicted of those offenses after a jury trial.2 	See Rezk, 150
N.H. at 485, 84 A.2d at 760. 	The Superior Court sentenced him
to serve 13½ - 37 years in prison for those offenses.3 	Nothing
in Rezk’s filing in this court suggests that he is challenging
2Rezk was also charged with, and convicted of, attempted
burglary and a third felon in possession of a firearm offense;
those convictions were later reversed for reasons not pertinent
to the court’s preliminary review of the instant petition. 	See
Rezk, 150 N.H. at 493, 840 A.2d at 767.
3It appears that, in addition to his sentence for receiving
stolen property and being a felon in possession of a firearm,
Rezk is incarcerated pursuant to a 10 - 30 year sentence imposed
by the state Superior Court for a 2008 conviction for criminal
threatening. 	See Sept. 5, 2008 Sent’g Order, State v. Rezk, No.
218-2007-CR-03101 (N.H. Super. Ct., Rockingham Cty.) (imposing
10 – 30 year prison sentence, to be served consecutively to
Rezk’s 2004 sentence). 	The New Hampshire Department of
Corrections online inmate locator indicates that Rezk has a
minimum release date of September 17, 2024. 	See
https://business.nh.gov/inmate_locator/default.aspx (last
visited Sept. 23, 2019).
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those criminal convictions or sentences, pursuant to which he is
presently incarcerated.
Because Rezk was never charged with armed robbery, he has
never been detained pursuant to the January 2001 armed robbery,
except on March 29, 2001, when he was arrested and detained at
the police station on those charges. 	Accordingly, Rezk is not
presently incarcerated pursuant to the January 2001 armed
robbery.
B. 	Challenge to Present Custody
To obtain habeas relief under § 2241, Rezk must demonstrate
that he is in custody in violation of his federal constitutional
rights, or his rights otherwise arising under federal law. 	See
28 U.S.C. § 2241(c)(3); see also id. at § 2254(a); Maleng v.
Cook, 490 U.S. 488, 490 (1989). 	The “in custody” requirement of
the federal habeas statute is jurisdictional. 	See Maleng, 490
U.S. at 490. 	Custody is determined as of the date the habeas
petition is filed. 	See Carafas v. LaVallee, 391 U.S. 234, 238-
40 (1968).
To the extent Rezk, in this action, seeks to assert claims
challenging the fact that he was never charged, tried, or
convicted of armed robbery, the petition does not suggest any
grounds upon which Rezk could assert such claims to challenge
his present custody on other unrelated offenses. 	Further, in
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his petition, Rezk did not mention, much less challenge, the
validity of his incarceration pursuant to the convictions and
sentences underlying his present incarceration. 	Accordingly,
Rezk cannot demonstrate that he is “in custody,” 28 U.S.C. §
2241(c)(3), in violation of his federal constitutional or
statutory rights, and the district judge should dismiss his
petition on that basis.
Conclusion
For the foregoing reasons, the district judge should
characterize this matter as a § 2241 petition, and then dismiss
it in its entirety. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file specific
written objections to the Report and Recommendation within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016); Fed. R. Civ. P. 72(b)(2).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
September 26, 2019
cc: 	God, Michael A. Rezk, pro se
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