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Bridges v. Bertsch

United States District Court, D. North Dakota

March 4, 2019

John C. Bridges, a/k/a Almighty God Satan, Petitioner,
v.
Leann Bertsch, North Dakota Department of Corrections and Rehabilitation, Respondent.

          ORDER GRANTING MOTION TO DISMISS

          Clare R. Hochhalter, Magistrate Judge.

         Before the Court is Motion to Dismiss Section 2254 Petition filed by the Respondent on January 10, 2019. The Respondent seeks dismissal of this action. In the alternative, she requests additional time to file a substantive response to the Petitioner's habeas petition. For the reasons set for below, the Motion to Dismiss Section 2254 Petition is granted and the request for additional time is deemed moot.

         I. BACKGROUND

         The Petitioner was convicted in two separate North Dakota cases. He was first convicted in State No. 08-2012-CR-01587 of murder and kidnaping, for which the state district court imposed a sentence of life imprisonment without parole and twenty years imprisonment, respectively. He was subsequently convicted in State No. 08-2012-CR-02276 of attempted murder and possession of contraband by an inmate, for which the state district court imposed consecutive sentences of twenty years imprisonment. Sometime thereafter he was transferred by the North Dakota Department of Corrections to a federal correctional facility in Florence, Colorado, for service of his sentences.

         On November 2, 2018, the Petitioner filed a petition for a writ habeas corpus pursuant to 28 U.S.C. § 2241 with United States District Court for the District of Colorado. He asserted:

I'm a state prisoner housed in the Administrative Maximum (“ADX” federal prison at Florence, Colorado. My federal custody is under the inter-governmental (i.e., state to federal) transfer compact; the “compact” is a contractual agreement between the North Dakota Dept of Corrections (ND-DOC) and the Federal Bureau of Prisons (BOP). The compact is unlawful because ND-DOC prison officials . . . . promised to transfer me to Montana state prison if I plead guilty to attempted murder (for assaulting one of their correctional officers in 2013), and they used that conviction to transfer me to the BOP (under the compact.) They know about my history of mental illness and exploited it by offering to transfer me (to my home state) in exchange for a guilty plea. Any compact based on that conviction is unlawful and should be void (or revised); therefore my present physical custody in the BOP is unlawful.
I want to withdraw my guilty plea (for attempted murder) because prison officials lied to me, and used my conviction to send me to the ADX (despite the fact that the officer I assaulted only received superficial wounds and wasn't hurt; also I served my seg. time for the assault in North Dakota before they sent me here). Additionally, I request for a federal judge to review the compact and determine its legality (given the information I provided in this petition).

(Doc. No. 1).

         On December 13, 2018, the district court in Colorado issued an order dismissing the Petitioner's civil rights claims, reminding the Petitioner that he did not have a constitutional right to be confined to any particular correctional facility, and transferring the Petitioner's claim challenging the validity of his conviction in State No. 08-2012-CR-02276 to this Court. (Doc. No. 7).

         On December 17, 2018, the Clerk's office sent notice to the parties that this matter had been directly assigned to the Magistrate Judge and requested that they complete and return an enclosed Consent/Reassignment form. (Doc. No. 9).

         On December 28, 2018, the Court issued orders granting the Petitioner leave to proceed in forma pauperis, substituting Director Bertsch in place of the United States as the named respondent, and directing the Clerk's office to serve her with a copy of the Petitioner's habeas petition. (Doc. Nos. 10 and 11).

         On January 7, 2019, the Petitioner filed notice of his consent to the Magistrate Judge's exercise of jurisdiction. On January 8, 2019, he filed a motion for leave to attach a two-page “annex” to his petition. The Court granted his motion and directed the Clerk's office to attach the “annex” to the petition and refile it as an amended petition. (Doc. Nos. 17 and 18).

         Meanwhile, on January 11 and 14, 2019, the Respondent filed a Motion to Dismiss and supplement to the motion, respectively. (Doc. Nos 15 and 19). She avers that the petition is untimely. Alternatively, she asserts that the Petitioner has failed to exhaust his state court remedies as required by 28 U.S.C. § 2254(b)(1). On February 1, 2019, she filed consent to the Magistrate Judge's exercise of jurisdiction.

         More than 21 days has now lapsed since the Respondent filed her supplement to the Motion to Dismiss and the Petitioner has yet to file a response. See D.N.D. Civ. L.R. 7.1(A)(1) (“The adverse party has twenty-one (21) days after service of the memorandum in support to serve and file a response subject to the same page limitations.”). The Petitioner's silence may be deemed an admission that the motion is well taken. See D.N.D. Civ. L.R. 7.1(F) (“An ...


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