                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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HLD-41 (January 2007)                                          NOT PRECEDENTIAL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

                                               3
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.
