John G. Westine v. Joseph Norwood

Filing 11

MEMORANDUM AND ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge Manuel L. Real. IT IS HEREBY ORDERED AS FOLLOWS: 1. The Court finds that this claim is not properly presented as a 28 U.S.C. § 2241 petition pursuant to the savings clause of 28 U.S.C. § 2255;2. The Petition for Writ of Habeas Corpus by a Person in Federal Custody (28 U.S.C. § 2241) shall be construed as a motion pursuant to 28 U.S.C. § 2255 and; 3. This action is hereby dismissed without prejudice. (rp)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner attached an unnumbered series of pages labeled "Emergency Motion" (hereinafter "Attachment"). For clarity, this Court has numbered the Attachment pages as "1" through "4." On August 4, 2008, petitioner filed a document titled "Request for a Court Order Immediate Release Of Prisoner 28 USC § 2243." On September 4, 2008, petitioner made an additional filing labeled "Issue Never Denied On Merits `Immediate Release Prisoner.'" These documents purport to set forth his arguments in more detail.
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U N I T E D STATES DISTRICT COURT C E N T R A L DISTRICT OF CALIFORNIA -- WESTERN DIVISION

J O H N G. WESTINE, P e t i t io n e r , v. J O S E P H NORWOOD, Warden, R e sp o n d e n t.

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C a s e No. CV 08-4766-R (JWJ) M E M O R A N D U M AND ORDER D IS M IS S IN G ACTION WITHOUT P R E JU D IC E

I . BACKGROUND O n July 21, 2008, Petitioner John G. Westine, proceeding pro se, filed a " P e t it io n for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (c) (3) by a P e rs o n in Federal Custody Under [5] Section § 2255 Known as the "Escape H a t c h " (hereinafter "Petition").1 The Court has screened the Petition pursuant t o 28 U.S.C. § 2243, the Federal Rules of Civil Procedure and the Local Rules o f the Central District of California.

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P e t it io n e r was sentenced in the United States District Court for the S o u t h e r n District of Ohio. (Petition, p. 2.) He is currently incarcerated at U .S .P . Victorville in Adelanto, California. (Petition, p. 2.) Petitioner p r e v io u s ly filed a motion under 28 U.S.C. § 2255 in the United States District C o u rt for the Southern District of Ohio, wherein Petitioner argued the fo llo w in g : "(1) counsel rendered ineffective assistance; (2) the prosecution fa ile d to disclose evidence favorable to the defense; (3) the forfeiture of his p ro p e rt y in addition to his criminal conviction subjected him to double jeo p a rd y ; and (4) erroneous information in his presentence investigation report ( P S I) was improperly used to enhance his sentence." Westine v. United States, 9 4 F.3d 645 (6th Cir. 1996). The district court denied Petitioner's § 2255 m o t io n , and the Sixth Circuit affirmed in an opinion from which the foregoing fa c ts have been derived. Id. Petitioner's § 2241 Petition presently before this Court presents two g ro u n d s for relief, to wit: (1) his indictment fails to state a federal offense; and ( 2 ) an opinion of the United States Supreme Court, United States v. Santos, 7 6 U.S.L.W. 4341, 128 S. Ct. 2020, 170 L. Ed. 2d 912 (2008), demonstrates t h a t petitioner is actually and factually innocent of money laundering under 18 U .S .C . § 1956. (Petition, p. 3.) As discussed below, the Petition is dismissed w it h o u t prejudice.

I I . DISCUSSION Federal courts are always under an independent obligation to examine t h e ir own jurisdiction, and a federal court may not entertain an action over w h ic h it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9 t h C ir. 2000). Generally, motions to contest the legality of a sentence must be filed u n d e r § 2255 in the sentencing court, while petitions that challenge the -2-

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m a n n e r, location or conditions of a sentence's execution must be brought p u rs u a n t to § 2241 in the custodial court. See Doganiere v. United States, 914 F .2 d 165, 169-70 (9 t h Cir. 1990); Brown v. United States, 610 F.2d 672, 677 ( 9 t h Cir. 1990). However, under the savings clause of § 2255, a federal prisoner m a y file a habeas corpus petition pursuant to § 2241 to contest the legality of a s e n t e n c e where his remedy under § 2255 is "inadequate or ineffective to test t h e legality of his detention." 28 U.S.C. § 2255; see Moore v. Reno, 185 F.3d 1 0 5 4 , 1055 (9 t h Cir. 1999). An inquiry into whether a § 2241 petition is p r o p e r under these circumstances is critical to the determination of district c o u r t jurisdiction because the proper district for filing a habeas petition d e p e n d s upon whether the petition is filed pursuant to § 2241 or § 2255. Hernandez, 204 F.3d at 865. Where a petitioner claims that § 2255 provides a n ineffective remedy, the district court in which the petition is brought is re q u ire d initially to rule whether a § 2241 remedy is available under the savings c la u se . Id. at 866. Here, petitioner is clearly challenging the validity of his sentence, since h e claims that: 1) his indictment fails to state a federal offense; and 2) he is a c tu a lly and factually innocent of money laundering under 18 U.S.C. § 1956. (Petition, p. 3.) Thus, petitioner's claims must be addressed in a motion under § 2255 unless he can show that the remedy under § 2255 is "inadequate or in e f fe c tiv e " and therefore, the saving clause would apply in his case. Although th e Ninth Circuit has not fully defined when the remedy under § 2255 is " in a d e q u a t e or ineffective," the exception is very narrow. See Ivy v. Pontesso, 3 2 8 F.3d 1057, 1059 (9th Cir. 2003). Petitioner argues that the Sixth Circuit of the United States Court of A p p e a ls has barred petitioner from any judicial remedy, and thus his only rem e d y is under the savings clause of § 2255. (Attachment, p. 3.) However, t h is argument is insufficient to meet the narrow savings clause exception. The -3-

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s a vin g s clause is not invoked merely because petitioner has previously filed a § 2255 motion: AEDPA's filing limitations on successive § 2255 motions do n o t render § 2255 inadequate or ineffective. See Moore, 185 F.3d at 1055; L o r e n t s e n v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). It follows that because c o u rt s of the Sixth Circuit have determined to limit petitioner's vexatious filin g s in those courts, such limitation does not render a § 2255 motion in e f fe c tiv e or inadequate. S e c t io n 2255 provides an "inadequate or ineffective" remedy when the p e t it io n e r claims to be factually innocent of the crime for which he has been c o n v ic te d and has never had an unobstructed procedural shot at presenting this c la im . See Ivy v. Pontesso, 328 F.3d at 1060 ("[I]t is not enough that the p e t it io n e r is presently barred from raising his claim of innocence by motion u n d e r § 2255. He must never have had the opportunity to raise it by motion." ( e m p h a sis added)). Petitioner alleges that his indictment fails to state a federal offense. (Petition, p. 3.) Petitioner does not indicate whether he raised this claim in his s e n t e n c in g court, and if not, why he never had an "unobstructed procedural s h o t at presenting" it. See Ivy, 328 F.3d at 1060. Thus, petitioner has failed to meet the requisite standards for proceeding under the savings clause of § 2255 on his § 2241 Petition with respect to this claim. P e t it io n e r also asserts that the Supreme Court's decision in United States v . Santos makes him factually innocent of money laundering. (Petition, p. 3.) T h e Santos court clarified the meaning of the term "proceeds" in the federal m o n e y laundering statute, 18 U.S.C. § 1956. United States v. Santos, 128 S. C t . at 2025. The Supreme Court held that criminal "proceeds" refer only to c rim in a l profits, not criminal receipts. Id. This Court has carefully reviewed p e tit io n e r's filings and cannot discern a factual basis for his alleged innocence. Though Santos makes a distinction between criminal profits and criminal -4-

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re c e ip t s , petitioner's filings do not explain with any clarity how this distinction m a k e s him factually innocent of the money laundering crime. The relevant e v id e n c e which could shed more light on the factual basis for petitioner's c o n v ic t io n was adduced in the Southern District of Ohio, where his trial took p la c e . Furthermore, this Court is in a substantially inferior position to the S o u th e rn District of Ohio to evaluate testimony evidence underlying p e t it io n e r's conviction as it is impacted by the Santos opinion. T h e instant petition is devoid of any indication whether petitioner raised a n objection at trial based on the Santos distinction between criminal profits a n d criminal receipts during his direct appeal of the case, and why he might h a v e been foreclosed from doing so. Petitioner thus has not alleged why he did n o t have an "unobstructed procedural shot" at raising this claim. See Ivy, 328 F .3 d at 1060. For the foregoing reasons, petitioner has failed to meet the req u i sit e standards for bringing this claim, pursuant the savings clause of § 2255, under § 2241. Accordingly, this Court construes petitioner's habeas corpus petition, b r o u g h t pursuant to 28 U.S.C. § 2241, as a motion to vacate, set aside or c o rre c t his sentence pursuant to 28 U.S.C. § 2255.2 This Court lacks ju ris d ic t io n in this matter because a § 2255 petition must be filed in the s e n t e n c in g court. See Hernandez, 204 F.3d at 864. It is further noted that b e c a u s e petitioner has filed multiple § 2255 motions, the Court is not required t o provide petitioner with notice and an opportunity to respond prior to

It is further noted that petitioner has filed over 100 petitions, motions, or appeals contesting his confinement on similar grounds, none of which have been meritorious. It is clear that petitioner is placing an undue burden on the court. In August 13, 2008, this Court filed a Report and Recommendation that petitioner is a vexatious litigant and has abused the Court's process pursuant to Local Rules 83-8.3 and applicable federal law. (Case No. CV 08-3254-R (JWJ).) Petitioner filed Objections to the Report and Recommendation on August 27, 2008. (Id.) -5-

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re c h a ra c t e riz in g his pro se petition as a § 2255 motion. See Castro v. United S t a t e s , 540 U.S. 375, 377, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (holding t h a t "the court cannot so recharacterize a pro se litigant's motion as the lit ig a n t's first §2255 motion unless the court informs the litigant of its intent t o recharacterize, warns the litigant that the recharacterization will subject s u b s e q u e n t § 2255 motions to the law's `second or successive' restrictions, and p r o v id e s the litigant with an opportunity to withdraw, or to amend, the filing") ( e m p h a sis added). Therefore, the Petition is dismissed without prejudice.

ORDER F o r all the foregoing reasons, I T IS HEREBY ORDERED AS FOLLOWS: 1. T h e Court finds that this claim is not properly presented as a 28 U .S .C . § 2241 petition pursuant to the savings clause of 28 U.S.C. § 2255; /// /// /// /// /// /// /// /// /// /// /// /// -6-

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2.

T h e Petition for Writ of Habeas Corpus by a Person in Federal C u s to d y (28 U.S.C. § 2241) shall be construed as a motion p u rs u a n t to 28 U.S.C. § 2255 and;

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T h is action is hereby dismissed without prejudice.

D A T E D :_ O c t o b e r 7, 2008____

_________________________________ MANUEL L. REAL United States District Judge

P r e se n te d by: DATED : October 2, 2008

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ / s /_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ JEFFREY W. JOHNSON United States Magistrate Judge

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