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Andreozzi v. Tracy
United States District Court, D. Arizona
October 3, 2016
Armand Andreozzi, Petitioner,
Kathryn Tracy, Respondent.
G. Campbell United States District Judge
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.
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
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,
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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