Thomas Jerecki v. L. J. Milusnic

Filing 6

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Fernando M. Olguin. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Petitioner's request for abeyance is denied. It is Further Ordered that Judgment shall be entered denying and dismissing the Petition without prejudice. (Attachments: # 1 R&R) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THOMAS JERECKI,

) NO. CV 14-1642-FMO(E)
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Petitioner,
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v.
) REPORT AND RECOMMENDATION OF
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L.J. MILUSNIC, Warden,
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
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______________________________)

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This Report and Recommendation is submitted to the Honorable

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Fernando M. Olguin, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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BACKGROUND

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On March 5, 2014, Petitioner filed a “Memorandum of Law in

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Support of Petitioner’s Motion to Petition for a Writ of Habeas

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Corpus, Pursuant to 28 U.S.C. §2255 By a Person in Federal Custody”

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(“Petition”).

The petition challenges Petitioner’s 1998 career

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offender sentence of 262 months.

Petitioner received this sentence in

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the United States District Court for the Southern District of West

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Virginia upon pleading guilty to conspiracy to possess with intent to

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distribute and to distribute methamphetamine.

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Thomas Jerecki, United States District Court for the Southern District

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of West Virginia case number 6:98-CR-00111-1.1

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to contend that: (1) Petitioner was not informed, prior to his plea,

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that he would receive a career offender sentence; (2) the sentencing

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court failed to impose a three point sentence reduction for acceptance

See United States v.

The Petition appears

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of responsibility; and (3) Petitioner’s counsel allegedly rendered

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ineffective assistance at sentencing by assertedly: (a) failing to

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contest the career offender sentence; and (b) failing to seek a

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sentence reduction for acceptance of responsibility.

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requests an order holding the Petition in abeyance pending the hoped-

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for passage of certain proposed federal legislation.

Petitioner also

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Petitioner previously challenged his sentence on direct appeal to

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the United States Court of Appeals for the Fourth Circuit.

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States v. Jerecki, 199 F.3d 1329, 1999 WL 982048 (4th Cir. 1999)

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(unpublished disposition).

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(1) Petitioner assertedly was not informed, prior to the plea, that he

See United

In this appeal, Petitioner argued:

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The Court takes judicial notice of the records of
United States District Court for the Southern District of West
Virginia and the United States Court of Appeals for the Fourth
Circuit available on the PACER database. See Mir v. Little
Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court
may take judicial notice of court records). The Court also takes
judicial notice of the docket of Petitioner’s petition for writ
of certiorari to the United States Supreme Court, available on
the United States Supreme Court’s website at
www.supremecourt.gov. Id.
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faced a career offender sentence; and (2) Petitioner allegedly was

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entitled to a three point reduction for acceptance of responsibility.

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See Petition, p. 6; see also Brief of Appellant Thomas Jerecki filed

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August 17, 1999, in United States Court of Appeals for the Fourth

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Circuit case number 98-4917, reproduced at 1999 WL 33614323.

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Court of Appeals for the Fourth Circuit rejected Petitioner’s

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arguments and affirmed the sentence.

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199 F.3d 1329, 1999 WL 982048 at *1.

The

See United States v. Jerecki,

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In 2000, Petitioner filed a motion to vacate his sentence

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pursuant to 28 U.S.C. section 2255 in the United States District Court

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for the Southern District of West Virginia.2

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Magistrate Judge issued proposed findings and recommended the denial

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of the motion.

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Order adopting the Magistrate Judge’s findings and denying the motion.

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The United States Court of Appeals for the Fourth Circuit affirmed

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this denial, and the United States Supreme Court denied certiorari.

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See United States v. Jerecki, 30 Fed. App’x 97 (4th Cir.), cert.

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denied, 537 U.S. 848 (2002).

On June 6, 2001, a

On September 21, 2001, the District Court issued an

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DISCUSSION

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A federal prisoner who contends that his or her conviction or

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sentence is subject to collateral attack “may move the court which

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imposed the sentence to vacate, set aside or correct the sentence.”

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28 U.S.C. § 2255.

“Generally, motions to contest the legality of a

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The docket does not reflect the content of this motion.
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sentence must be filed under § 2255, while petitions that challenge

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the manner, location, or conditions of a sentence’s execution must be

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brought pursuant to § 2241 in the custodial court.”

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Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (citations and footnote

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omitted).

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under 28 U.S.C. section 2241 for a section 2255 motion.

Hernandez v.

A prisoner generally may not substitute a habeas petition

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An application for a writ of habeas corpus in behalf of a

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prisoner who is authorized to apply for relief by motion

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pursuant to this section, shall not be entertained if it

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appears that the applicant has failed to apply for relief,

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by motion, to the court which sentenced him, or that such

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court has denied him relief, unless it also appears that the

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remedy by motion is inadequate or ineffective to test the

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legality of his detention.

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28 U.S.C. § 2255; see Stephens v. Herrera, 464 F.3d 895, 897-99 (9th

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Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. Campbell,

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204 F.3d at 864.

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been denied, section 2255 relief in the sentencing court.

Here, it appears Petitioner has applied for, and has

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“Under the savings clause of § 2255, however, a federal prisoner

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may file a habeas corpus petition pursuant to § 2241 to contest the

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legality of a sentence where his remedy under section 2255 is

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‘inadequate or ineffective to test the legality of his detention.’”

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Hernandez v. Campbell, 204 F.3d at 864-65; see also Stephens v.

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Herrera, 464 F.3d at 897.

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2255 exclusivity is a “narrow” exception.

This “savings clause” exception to section

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Ivy v. Pontesso, 328 F.3d

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1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United

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States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997).

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Mere lack of success in the sentencing court does not make the

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section 2255 remedy “inadequate or ineffective.”

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States, 463 F.2d 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912

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(1973); see Tripati v. Henman, 843 F.2d 1160, 1162-63 (9th Cir.),

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cert. denied, 488 U.S. 982 (1988).

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disappointed prisoner/movant incarcerated in a district different from

Boyden v. United

If the rule were otherwise, every

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the sentencing district could pursue a repetitive section 2241

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petition in the district of incarceration.

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Similarly, neither the enforcement of the statute of limitations

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nor the enforcement of restrictions on successive 2255 motions renders

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the section 2255 remedy “inadequate or ineffective” within the meaning

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of the statute.

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1999), cert. denied, 528 U.S. 1178 (2000) (dismissal of a prior

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section 2255 motion as successive does not render the section 2255

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remedy “inadequate or ineffective”); Gilbert v. United States, 640

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F.3d 1293, 1308 (11th Cir. 2011) (en banc), cert. denied, 132 S. Ct.

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1001 (2012) (dismissal of earlier section 2255 motion as successive

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does not render the section 2255 remedy “inadequate or ineffective”);

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Hill v. Morrison, 349 F.3d 1089, 1092 (8th Cir. 2003) (“a § 2255

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motion is not ‘inadequate or ineffective’ merely because: (1) § 2255

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relief has already been denied, (2) the petitioner has been denied

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permission to file a second or successive § 2255 motion, (3) a second

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or successive § 2255 motion has been dismissed, or (4) the petitioner

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has allowed the one year statute of limitations and/or grace period to

See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.

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expire.”) (citations, internal brackets and quotations omitted);

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Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002)

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(“Section 2255 is not inadequate or ineffective merely because the

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sentencing court does not grant relief, the one-year statute of

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limitations has expired, or the petitioner is unable to meet the

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stringent gatekeeping requirements of the amended § 2255") (citations

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omitted); Robinson v. United States, 2011 WL 4852499, at *2 (C.D. Cal.

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Oct. 12, 2011) (savings clause does not apply merely because the

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statute of limitations “now prevents the courts from considering a

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section 2255 motion”); cf. Ivy v. Pontesso, 328 F.3d at 1060 (“[I]t is

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not enough that the petitioner is presently barred from raising his

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claim . . . by motion under § 2255.

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opportunity to raise it by motion.”).

He must never have had the

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A federal prisoner may file a section 2241 petition under the

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savings clause if the prisoner “(1) makes a claim of actual innocence,

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and (2) has not had an unobstructed procedural shot at presenting that

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claim.”

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denied, 133 S. Ct. 1264 (2013) (citation and internal quotations

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omitted).

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demonstrate that, in light of all the evidence, it is more likely than

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not that no reasonable juror would have convicted him.”

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United States, 523 U.S. 614, 623 (1998) (citation and quotations

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omitted).

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insufficiency.’”

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U.S. at 623) (internal brackets omitted).

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Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012), cert.

“[T]o establish actual innocence, petitioner must

Bousley v.

“‘Actual innocence means factual innocence, not mere legal
Id. at 1193 (quoting Bousley v. United States, 523

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Petitioner pled guilty to the charged offense.

The present

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Petition challenges the sentence he received.

Petitioner’s purely

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legal arguments that he assertedly was wrongly classified as a career

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offender and denied an acceptance of responsibility reduction do not

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demonstrate actual innocence.

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95 (claim that petitioner was wrongly classified as a career offender

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did not entail a claim of actual innocence; noting cases in other

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circuits holding that a petitioner generally cannot assert a

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cognizable claim of actual innocence of a noncapital sentencing

See Marrero v. Ives, 682 F.3d at 1193-

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enhancement); Chavez v. United States, 2013 WL 5924377, at *3 (N.D.

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Ohio Oct. 31, 2013) (challenge to sentencing court’s failure to award

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a reduction for acceptance of responsibility did not show actual

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innocence).

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Petitioner also fails to satisfy the “unobstructed procedural

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shot” prong of the savings clause analysis.

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petitioner had an unobstructed procedural shot to pursue his claim, we

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ask whether petitioner’s claim ‘did not become available’ until after

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a federal court decision.”

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(citation omitted).

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legal basis for petitioner’s claim ‘did not arise until after he had

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exhausted his direct appeal and first § 2255 motion’; and (2) whether

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the law changed ‘in any way relevant’ to petitioner’s claim after that

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first § 2255 motion.”

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prevented Petitioner from previously raising his present claims in his

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“In determining whether a

Harrison v. Ollison, 519 F.3d at 960

“In other words, we consider: (1) whether the

Id. (citation omitted).

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Here, nothing

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section 2255 motion in the Southern District of West Virginia,3 and it

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does not appear that any aspect of the applicable law materially

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changed thereafter.4

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Petitioner contends that his previous efforts to seek relief

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where hindered by the alleged failure of prison officials at

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Petitioner’s place of incarceration to give Petitioner an “important

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motion” (“Document #24”) assertedly filed in one of Petitioner’s

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cases.

Petitioner does not provide or describe this document, and it

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is unclear in what court the document supposedly was filed.

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has reviewed the online dockets of Petitioner’s criminal case, his

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appeal to the Fourth Circuit, his petition for certiorari in the

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United States Supreme Court, his earlier section 2255 motion and his

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appeal from the denial of that motion.

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these dockets reflects the existence of any “Document 24.”5

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exception is the criminal case docket, in which Document 24 is

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Petitioner’s executed guilty plea, filed September 1, 1998.

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of the records of which this Court has taken judicial notice, it is

The Court

With one exception, none of
The

In light

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Petitioner may have raised the claims asserted herein
in his earlier section 2255 motion; however, the Court lacks a
copy of that motion.
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Contrary to Petitioner’s suggestion, nothing in Munaf
v. Green, 128 S. Ct. 2207 (2008) materially altered the law
applicable to Petitioner’s circumstance.
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In his direct appeal in the Fourth Circuit, Document 23
is Petitioner’s Joint Appendix. There are no Documents 24, 25 or
26. Document 27 is Petitioner’s brief. The docket in the United
States Supreme Court lists only five entries.

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In Petitioner’s second appeal in the Fourth Circuit, entry
24 records the return of the appellate record to the District
Court following affirmance of the denial of Petitioner’s earlier
section 2255 motion.
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manifest that Petitioner previously had an “unobstructed procedural

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shot” at asserting his claims, regardless of any alleged interference

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by prison officials.

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In sum, the savings clause does not apply in the present case.

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Therefore, the Petition is a section 2255 motion over which this Court

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lacks jurisdiction.6

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A court lacking jurisdiction of a civil action may transfer the

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action to a court in which the action could have been brought,

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provided the transfer is “in the interest of justice.”

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1631; see Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir.

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2001).

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normally dismissal of an action that could be brought elsewhere is

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time consuming and justice-defeating.”

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quotations omitted).

28 U.S.C. §

“Normally transfer will be in the interest of justice because

Id. at 1074 (citations and

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In determining whether to transfer an action, the Court must

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consider whether the action would have been timely had the action been

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filed in the proper forum.

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232, 233 (9th Cir. 1988).

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statute of limitations bars the present action, given the fact that

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Petitioner’s direct appeal concluded in 2002.

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should not transfer this action because, for a separate reason, a

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transfer would be an idle act.

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6986789 (C.D. Cal. Dec. 15, 2011), adopted, 2012 WL 84768 (C.D. Cal.

See Taylor v. Soc. Sec. Admin., 842 F.2d
It may well be that the applicable one-year

In any event, the Court

As in Crosby v. United States, 2011 WL

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Hence, the Court must deny Petitioner’s request for

abeyance.
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Jan. 11, 2012), and Scott v. Ives, 2010 WL 295786 (E.D. Cal. Jan. 13,

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2010, a transfer to the district of conviction would not benefit the

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petitioner because the district of conviction would be unable to

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entertain the matter.

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Southern District of West Virginia could not entertain this “second or

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successive” section 2255 motion absent Fourth Circuit authorization.

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See 28 U.S.C. § 2244, 2255(h).

The United States District Court for the

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Finally, Petitioner should be aware that his remedies, if any,

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for errors allegedly committed by the United States District Court for

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the Southern District of West Virginia lie with the Fourth Circuit and

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the United States Supreme Court, not with this Court.

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of Pierce, 246 F.2d 902 (9th Cir. 1957); see also Wallace v.

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Willingham, 351 F.2d 299, 300 (10th Cir. 1965) (remedy for error

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committed in section 2255 proceeding “does not lie in this [sic]

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habeas corpus proceedings.

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or supplemental remedy.

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2255 proceedings”).

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and obtained review of his sentence in the Fourth Circuit.

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States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012), cert. denied,

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133 S. Ct. 1650 (2013) (“when a matter has been decided adversely on

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appeal from a conviction, it cannot be litigated again on a section

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2255 motion”) (citation omitted); Feldman v. Henman, 815 F.2d 1318,

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1322 (9th Cir. 1987) (“habeas corpus review in district court does not

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extend to matters already decided by [the circuit court].”); see also

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United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013), pet. for

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cert. filed (Feb. 4, 2014) (No. 13-8645) (“it is well settled that

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Dyess cannot ‘circumvent a proper ruling . . . on direct appeal by

See Application

Habeas is not an additional, alternative

Nor is it available to review judgments in

As summarized above, Petitioner previously sought

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See United

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re-raising the same challenge in a § 2255 motion.’”) (citations

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omitted).

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sentence pursuant to section 2255 is for the Fourth Circuit to decide

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in the first instance.

Whether Petitioner can secure further review of his

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RECOMMENDATION

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For all of the foregoing reasons, IT IS RECOMMENDED that the
Court issue an Order: (1) accepting and adopting this Report and

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Recommendation;

(2) denying Petitioner’s request for abeyance; and

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(3) denying and dismissing the Petition without prejudice.

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DATED: March 13, 2014.

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______________/S/___________________
CHARLES F. EICK
UNITED STATED MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

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No notice of appeal pursuant to the