USA v. Delacruz et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America,
Plaintiff,
v.
Kimberly Ann Ratliff, a/k/a Kimberly
Ann Risberg,
Defendant.
Criminal Case No. 2:14-cr-47-04
ORDER DENYING MOTION TO
VACATE UNDER 28 U.S.C. § 2255
INTRODUCTION AND SUMMARY OF DECISION
Before the court is Kimberly Ann Ratliff’s (“Ratliff”) second Motion to Vacate under
28 U.S.C. § 2255.1 Ratliff asks that the court vacate her conviction, arguing that her guilty
plea is invalid because of the government’s policy of housing transgender inmates with
other inmates who do not share the same biological sex. She asserts that this policy violates
the Ex Post Facto Clause, the Contract Clause, and the Cruel and Unusual Punishment
Clause of the Eighth Amendment. Because her claim is not cognizable under § 2255,
Ratliff’s motion is DENIED and the action is DISMISSED without prejudice.
BACKGROUND
On June 17, 2015, Ratliff was sentenced to 120 months imprisonment after pleading
guilty under a plea agreement to Conspiracy to Possess with Intent to Distribute and
Distribute a Controlled Substance in violation of 21 U.S.C. § 846.2 On May 17, 2016, she
filed her first Motion to Vacate under 28 U.S.C. § 2255, asserting that her attorney provided
ineffective assistance of counsel and that she should have received a minor-participant
1 Doc. #402, Second Mot. to Vacate.
2 Doc. #266, Judgment.
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reduction at sentencing.3 This court denied her motion on March 9, 2017.4
While Ratliff’s first motion was pending, the Bureau of Prisons issued the
Transgender Offender Manual Program Statement (“the policy”). The policy details how
prison officials should handle the initial designations of transgender inmates, citing 28
C.F.R. § 115.42(c): “In deciding whether to assign a transgender or intersex inmate to a
facility for male or female inmates . . . the agency shall consider on a case-by-case basis
whether a placement would ensure the inmate’s health and safety, and whether the
placement would present management or security problems.”5 Although the policy was not
issued until January 18, 2017, the cited federal regulation was adopted fifteen years ago.6
Because of the policy, “male transgender inmates, who still possess their genital
organs . . . are housed as women, placed in locked and unlocked housing units with the
Movant, sharing showers, toilets, and other intimate facilities.”7 These housing placements
have allegedly led to numerous instances of sexual harassment and assault on biologically
female inmates by biologically male preoperative transgender inmates.8 On August 7, 2017,
Ratliff filed the § 2255 motion now before the court, asserting that by issuing and
implementing the policy, the government has “violated the Ex Post Facto Clause, the
Contract Clause, and created a situation where the Movant’s sentence is Cruel and Unusual
Punishment.”9
3 Doc. #361, First Mot. to Vacate.
4 Doc. #392, Order Denying First Mot. to Vacate.
5 BUREAU OF PRISONS, 5200.04, TRANSGENDER OFFENDER MANUAL (Jan. 18, 2017),
https://www.bop.gov/policy/progstat/5200.04.pdf (quoting 28 C.F.R. § 115.42(c)).
6 United States v. Harper, No. 15-10155-01-JTM, 2017 U.S. Dist. LEXIS 117691, at *1 n.1 (D. Kan. July
27, 2017) (citing Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape,
77 F.R. 37-106-01, 2012 WL 231.7028 (June 20, 2012)).
7 Doc. #402, Second Mot. to Vacate 1.
8 Id. at 2.
9 Id. at 1.
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DISCUSSION
Although this court has already considered and denied a § 2255 motion brought by
Ratliff, she asserts that “[t]his is not a successive petition because the claim did not become
ripe until January 2017.”10 While the court is of the opinion that a strong argument can be
made that the petition is barred as a successive petition filed without the leave of the Court
of Appeals, it is indisputable that no cognizable claim is presented under section 2255.
Even though Ratliff stresses that “[t]he Movant is not challenging the prison
conditions,”11 any fair reading of her petition reveals no challenge to the legality of her
conviction but rather a plethora of claims relating to the conditions and execution of her
sentence. In United States v. Dao, the District of Minnesota arrived at the same conclusion
in denying a § 2255 motion brought by a female inmate in the same prison as Ratliff and
challenging the same policy.12 Because Ratliff does not challenge the legality of her
conviction, she cannot bring her claim under section 2255.13
While Ratliff could plausibly challenge the execution and conditions of her sentence
in a petition under 28 U.S.C. § 2241(a), such a challenge would be outside the court’s
jurisdiction because the court is without jurisdiction over Ratliff’s present custodian.14 At
10 Id. (citing In re Cain, 137 F.3d 234, 235–37 (5th Cir. 1998); Singleton v. Norris, 319 F.3d 1018
(8thCir. 2002)).
11 Id. at 2.
12 United States v. Dao, No. 09-48 (JNE) (1), 2017 U.S. Dist. LEXIS 123234 (D. Minn. Aug. 2, 2017).
13 See Nichols v. Symmes, 553 F.3d 647, 649 (8th Cir. 2009); Bell v. United States, 48 F.3d 1042, 1043
(8th Cir. 1995); United States v. Hutchings, 835 F.2d 185, 186 (8th Cir. 1987); Voytik v. United States, 778 F.2d
1306, 1310 (8th Cir. 1985). See also United States v. Janis, 599 F.2d 266, 267 (8th Cir. 1979) (holding that the
movant’s claim under section 2255 was not cognizable where he asked to withdraw his guilty plea because his
prison conditions were different from those promised in his plea agreement).
14 Bell, 48 F.3d at 1044 (citing Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494–95 (1973);
Thompson v. Missouri Bd. Of Parole, 929 F.2d 396, 398 (8th Cir. 1991)).
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the time of her petition, Ratliff was serving her sentence at Federal Medical Center, Carswell
in Fort Worth, Texas, which is in the Northern District of Texas.
DECISION
For the foregoing reasons, Ratliff’s Motion to Vacate under 28 U.S.C. § 2255 is
DENIED and the action is DISMISSED without prejudice. Because “the files and
records of the case conclusively show that [Ratliff] is entitled to no relief,” no hearing is
needed on the petition.15
CERTIFICATE OF APPEALABILITY DENIED
The court certifies that an appeal from the dismissal of this action may not be taken
in forma pauperis because such an appeal would be frivolous and cannot be taken in good
faith.16 The court further finds that Ratliff has failed to make a substantial showing of the
denial of a constitutional right and the issues presented in this case are inadequate to
deserve further consideration.17 Therefore, the court will not issue a certificate of
appealability.
If Ratliff desires further review of her Motion to Vacate under 28 U.S.C. § 2255, she
may request the issuance of a certificate of appealability by a circuit judge of the Eighth
Circuit Court of Appeals.18
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 4th day of October, 2017.
15 28 U.S.C. § 2255(b).
16 See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
17 See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
18 Tiedeman v. Benson, 122 F.3d 518, 520–22 (8th Cir. 1997).
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/s/ Ralph R. Erickson
Ralph R. Erickson, District Judge
United States District Court
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