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Andreozzi v. Tracy

United States District Court, D. Arizona

October 3, 2016

Armand Andreozzi, Petitioner,
v.
Kathryn Tracy, Respondent.

          ORDER

          David G. Campbell United States District Judge

         On February 29, 2016, Petitioner Armand Andreozzi filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Doc. 1. The Court referred the petition to Magistrate Judge Bridget S. Bade. Doc. 4 at 3. On July 8, 2016, Judge Bade issued a report and a recommendation that the Court deny the petition (“R&R”). Doc. 16. Petitioner filed pro se objections to the R&R (Doc. 19), and Respondent Kathryn Tracy filed a response (Doc. 22). For the reasons set forth below, the Court will accept Judge Bade's recommendation that the Petition be denied, but on a different basis.

         I. Background.

         Judge Bade provided the following summary of Petitioner's convictions and habeas corpus petition:

A. June 12, 1998 Court-Martial
On June 12, 1998, a panel of officers and enlisted members sitting as a general court-martial at Fort Carson, Colorado convicted Petitioner of rape, forcible sodomy, assault, burglary, kidnapping, and solicitation of another to assist in escape from pretrial confinement, in violation of several provisions of the Uniform Code of Military Justice (UCMJ). Petitioner was sentenced to reduction in rank, forfeiture of all pay and allowances, confinement for twenty-seven years, and a dishonorable discharge. The convening authority approved the sentence except for the forfeiture of pay and allowances, which was waived pursuant to Article 58b of the UCMJ and paid to Petitioner's spouse.
Petitioner, through counsel, appealed his conviction to the United States Army Court of Criminal Appeals (ACCA). November 4, 2004, the ACCA affirmed the “findings of guilty and the sentence . . . .” Petitioner then filed a “petition for grant of review” of the ACCA's decision in the United States Court of Appeals for the Armed Forces (CAAF). On October 4, 2005, the CAAF denied Petitioner's request for review.
B. November 13, 1998 Court-Martial
On November 13, 1998, Petitioner pleaded guilty to charges in a second court-martial and was found guilty of desertion, escaping confinement, larceny, wrongful appropriation of military property, assault, kidnapping, and unlawfully carrying a concealed weapon. On November 13, 1998, Petitioner was sentenced to confinement for fifteen years and a dishonorable discharge. On April 14, 1999, the convening authority approved the sentence. Petitioner, through counsel, appealed to the ACCA. On October 19, 2001, the ACCA affirmed the November 13, 1998 findings of guilty and the sentence. Petitioner filed a “petition for grant of review” of the ACCA's decision in the CAAF. On May 7, 2002, the CAAF denied Petitioner's request for review.
C. Dishonorable Discharge and Transfer to BOP
Following Petitioner's appeals, on December 6, 2005, he was dishonorably discharged from the U.S. Army. In accordance with a Memorandum of Agreement (MOA) between the U.S. Amy and the BOP, Petitioner was transferred to the BOP on January 17, 2006.
D. Habeas Corpus Proceeding in the ACCA
In January 2016, Petitioner filed a petition for writ of habeas corpus with the ACCA challenging his detention within BOP. Petitioner asserted that, although he was “housed” by BOP, he was in the custody of the armed forces serving a sentence imposed pursuant to a court-martial. He argued that because he remained in the legal custody of the armed forces, he was entitled to habeas corpus relief because he was being confined in immediate association with foreign nationals in violation of 10 U.S.C. § 812. ...

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