Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-31-2007
In Re: Hubbard
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1011
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"In Re: Hubbard " (2007). 2007 Decisions. Paper 1712.
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HLD-41 (January 2007) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1011
________________
IN RE: RUDOLPH HUBBARD,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from
the District Court of the Virgin Islands
(Related to D.C. Crim. No. 06-cr-0004-G-01)
_____________________________________
Submitted Under Fed. R. App. Pro. 21
January 19, 2007
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Filed: January 31, 2007)
________________
OPINION
PER CURIAM.
Petitioner Rudolph Hubbard, a Guyanese citizen also known as Treon
Cummings and Darrel Williams, was removed from the United States on or about August
6, 2004. Prior to his removal, he was convicted in United States District Court for the
Southern District of New York, at D.C. Crim. No. 03-cr-00480-JSM-All, for having made
a false statement in connection with his permanent resident application concerning his
criminal history, in violation of 18 U.S.C. § 1546(a). Hubbard was sentenced to time
served. See also United States v. Cummings, 115 Fed. Appx. 509 (2d Cir. 2004)
(summary order affirming conviction on direct appeal).
Hubbard filed a motion to vacate sentence under 28 U.S.C. § 2255 relating
to this conviction in the sentencing court. It very recently was denied. See Hubbard v.
United States, No. 06 Civ. 1176 (NRB), 2006 WL 3627761 (S.D.N.Y. December 13,
2006). In that section 2255 motion, Hubbard contended that the conviction was the result
of a malicious and vindictive prosecution, he was indicted and convicted on the basis of
perjured testimony, he was improperly convicted on the basis of testimony by his wife,
and he received ineffective assistance of counsel from both of his attorneys. Id. at *1.
Hubbard currently is detained at the Metropolitan Detention Center in San
Juan, Puerto Rico for attempting to illegally reenter the United States. A criminal
complaint was filed on February 4, 2005, the date that his current custody commenced, in
the District Court of the Virgin Islands at D.C. 05-cr-0021-G-01, alleging that he illegally
reentered following deportation in violation of 8 U.S.C. § 1326(a), and impersonated a
United States citizen in violation of 18 U.S.C. § 911. A Federal Public Defender was
appointed to represent him. An indictment was filed about a month later.
In July 2005, the Federal Public Defender was allowed to withdraw, and the
District Court appointed George Hodge, Esquire of St. Thomas, Virgin Islands to
represent Hubbard. A motion to suppress evidence was filed, and the government was
ordered to respond, the time to be excluded from the speedy trial calculation. On October
25, 2005, Hubbard filed a pro se motion for bail, in which he argued a Speedy Trial Act
2
violation. On December 6, 2005, the District Court treated that motion as a motion to
dismiss the indictment for a speedy trial violation, granted it, and ordered that the
Indictment be dismissed without prejudice.
A new indictment was filed on January 10, 2006 at D.C. 06-cr-0004-G-01,
again charging Hubbard with violations of 8 U.S.C. § 1326(a) and 18 U.S.C. § 911.
Again, the District Court appointed Mr. Hodge to represent Hubbard. Before Mr. Hodge
was appointed, however, Hubbard filed in the district court a pro se motion raising a
speedy trial issue, and he also filed a motion to suppress evidence. (Hubbard evidently
considers Mr. Hodge to be his “advisor” only.) Thereafter, pursuant to a motion filed by
the government, Hubbard was ordered by the District Court on August 10, 2006 to be
committed to the custody of the United States Attorney General for a psychiatric and/or
psychological examination and evaluation for a period not to exceed 30 days. On
September 22, 2006, Hubbard filed a pro se petition for writ of habeas corpus in the
district court, and several other items, including a letter seeking to learn the status of his
speedy trial motion. The District Court has yet to rule on any of Hubbard’s motions.
Before us now is Hubbard’s petition for writ of mandamus, in which he
seeks an order directing the District Court to rule on his habeas corpus petition and on his
speedy trial motion. With his mandamus petition he has submitted, in pertinent part, a
copy of his habeas corpus petition, an item titled “Declaration of Paper Terrorism,” and a
copy of an item submitted to the sentencing court, the Southern District of New York, in
the section 2255 proceedings. In Hubbard’s habeas corpus petition, he alleges that his
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conviction in the Southern District of New York, at D.C. Crim. No. 03-cr-00480, for
having made a false statement in connection with his permanent resident application, is
invalid because the prosecution was in retaliation for a civil action he filed against the
New York Police Department; it also was the result of entrapment. He further alleges that
his removal from the United States was illegal.
Hubbard also alleges in the habeas corpus petition that the current
indictment was obtained illegally by presenting false testimony to the grand jury and
suppressing favorable evidence, and that appointed counsel has rendered ineffective
assistance with respect to the speedy trial issue. In the “Declaration of Paper Terrorism,”
Hubbard claims that the original criminal prosecution in the Southern District of New
York was racially motivated, and, in the item submitted to the sentencing court, Hubbard
claimed that the government deliberately impeded his efforts to apply for asylum and
withholding of removal.
We will deny the petition for writ of mandamus. A writ of mandamus is an
extreme remedy that is invoked only in extraordinary situations. See Kerr v. United
States Dist. Court, 426 U.S. 394, 402 (1976). To justify the use of this extraordinary
remedy, a petitioner must show both a clear and indisputable right to the writ and that he
has no other adequate means to obtain the relief desired. See Haines v. Liggett Group
Inc., 975 F.2d 81, 89 (3d Cir. 1992). With respect to the original conviction in the
Southern District of New York for violating 18 U.S.C. § 1546(a), and his related
contention that he is entitled to benefits under the Immigration and Nationality Act,
4
Hubbard has not shown that he has no other adequate means to obtain the relief desired.
Under the explicit terms of 28 U.S.C. § 2255, unless a section 2255 motion would be
“inadequate or ineffective,” a habeas petition cannot be entertained by a court. See also
Application of Galante, 473 F.2d 1164, 1165 (3d Cir. 1971). Section 2255 is not
“inadequate or ineffective” merely because the sentencing court is not inclined to grant
relief. Moreover, Hubbard may appeal the order denying his section 2255 motion. He
has 60 days in which to appeal, Fed. R. App. Pro. 4(a)(1)(B), to the United States Court
of Appeals for the Second Circuit.
Hubbard also seeks an order directing the Assistant United States Attorney
in D.C. Crim. No. 05-cr-0021-G-01 to comply with 5 U.S.C. § 2906 (“The oath of office
taken by an individual under section 3331 of this title shall be delivered by him to, and
preserved by, the House of Congress, agency, or court to which the office pertains.”). As
that indictment was dismissed, we will deny this request as moot.
Hubbard’s request to have a ruling on the speedy trial issue with respect to
the current indictment presents a somewhat closer question, but we find that relief is not
warranted at this time because he has not shown a clear and indisputable right to the writ.
Under the Speedy Trial Act, a defendant must be brought to trial "within seventy days from
the filing date ... of the information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such charge is pending, whichever
date last occurs." 18 U.S.C. § 3161(c)(1). In any criminal prosecution there are legitimate
reasons for delay, however, and so there are a number of statutory exclusions, 18 U.S.C. §
5
3161(h), that call for time to be excluded from the calculation of the seventy-day limit.
The pendency of multiple pretrial motions provides a basis for excluding time
from the speedy trial calculation. See United States v. Felton, 811 F.2d 190, 196-97 (3d
Cir. 1987) (citing 18 U.S.C. § 3161(h)(1)(J)). The Speedy Trial Act also provides that the
time consumed during the competency examination process, see 18 U.S.C. § 4247(b), be
excluded from the speedy trial calculation, 18 U.S.C. § 3161(h)(1)(A). The time during
which a motion to determine competency is pending may also be excluded as is the time
during which the examination itself has been delayed. See, e.g., United States v. Daychild,
357 F.3d 1082, 1094 (9th Cir. 2004) (time limit on pretrial commitment for psychiatric
evaluation to determine competency to stand trial does not limit exclusion of that time
under Speedy Trial Act); United States v. Fuller, 86 F.3d 105, 106 (7th Cir. 1996) (same).
Although the current indictment was filed more than a year ago, multiple
pretrial motions have been filed, and commitment for the purpose of psychiatric or
psychological examination has been ordered. Thus, there are periods that plainly may be
excluded under the Speedy Trial Act. Hubbard’s concerns are not frivolous but, because of
the pretrial motions and the commitment order, and especially because he does not
challenge the commitment order, we are not persuaded that he has demonstrated a clear and
indisputable right to dismissal of the indictment at this time. 18 U.S.C. § 3162(a)(1) (after
setting aside excluded time, trial must commence within seventy-day limit, and, if it does
not, court must dismiss the indictment). Moreover, the District Court has shown a
willingness to respond to his pro se motions, as it did with his motion for bail filed in D.C.
6
05-cr-0021-G-01, which resulted in dismissal of the original indictment on speedy trial
grounds.
Accordingly, we will not order the District Court to rule on the speedy trial
issue at this time. We are confident both that the District Court is aware of the issue as it
pertains to this indictment, and that Hubbard has the ability to present and pursue his
arguments by filing a pro se motion to dismiss the indictment on the basis of the Speedy
Trial Act (or for bail) should he conclude that, even with the commitment exclusions, a
violation has occurred that entitles him to dismissal of the indictment.
The contention that the current indictment should be dismissed because it is
based on false testimony and suppressed favorable evidence does not present a close
question, and does not warrant mandamus relief. The current indictment is based on
Hubbard’s having illegally reentered the United States following removal; he does not deny
that he was previously removed and that he has since reentered without authority.
Moreover, the conviction that provided the basis for removal has never been invalidated.
We will deny the petition for writ of mandamus. Petitioner’s motion for
appointment of counsel is denied.