Derry Evans v. Richard Ives

Filing 24

FINAL REPORT AND RECOMMENDATION issued by Magistrate Judge Alexander F. MacKinnon. Re PETITION FOR WRIT OF HABEAS CORPUS 1 and MOTION to Dismiss PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 16 . (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DERRY EVANS,

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Case No. CV 16-04912 FMO (AFM)
Petitioner,

v.

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RICHARD IVES,

FINAL REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

Respondent.

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This Final Report and Recommendation is submitted to the Honorable

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Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. § 636 and

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General Order 05-07 of the United States District Court for the Central District of

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California.

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INTRODUCTION

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Petitioner, a federal inmate at the United States Penitentiary in Victorville,

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California, filed a Petition for Writ of Habeas Corpus by a Person in Federal

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Custody (28 U.S.C. § 2241) with an attached Memorandum on July 5, 2016.

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Petitioner is serving a sentence of 1,020 months for a conviction he sustained in

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March 2000 in the United States District Court for the Eastern District of Missouri

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for money laundering, conspiracy, and violations of the Mann Act, based on his

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participation in a prostitution ring.

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actually innocent of money laundering, particularly in light of a Supreme Court

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decision issued after his conviction, United States v. Santos, 553 U.S. 507 (2008),

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which narrowed the term “proceeds” for purposes of the money laundering statute.

The crux of the Petition is that petitioner is

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As discussed below, the Petition should be dismissed for lack of subject

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matter jurisdiction because a motion to contest the legality of a sentence generally

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must be filed in the sentencing court pursuant to 28 U.S.C. § 2255, and the narrow

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exception to the general rule does not apply here.

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Moreover, it would be

inappropriate to transfer this action to any other court.

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PROCEDURAL HISTORY

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The Court takes judicial notice of the relevant court documents from

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petitioner’s prior criminal and habeas proceedings.

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Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (courts may take judicial notice of

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undisputed matters of public record, including documents on file in federal or state

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courts).

See Harris v. County of

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In March 2000, petitioner and several codefendants were convicted in the

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United States District Court for the Eastern District of Missouri of crimes relating

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to the recruitment and transportation of individuals in interstate commerce for

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purposes of prostitution.

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interstate transportation of individuals for purposes of prostitution (Count 1),

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misuse of a Social Security number (Count 9), interstate transportation of a minor

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for purposes of prostitution (Counts 10, 12, 13), money laundering (Count 11),

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inducement of an individual to travel in interstate commerce for purposes of

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prostitution (Count 14), conspiracy to commit money laundering (Count 44), and

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criminal forfeiture (Count 45). He was sentenced to 1,020 months in federal prison.

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See U.S.A. v. Evans, 4:00-cr-00003-JCH-2 (E.D. Mo.), ECF Nos. 328-29, 425. In

Petitioner was convicted of conspiracy relating to

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November 2001, the Eighth Circuit Court of Appeals affirmed the judgment. See

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United States v. Evans, 272 F.3d 1069 (8th Cir. 2001).

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In May 2003, petitioner filed a motion to vacate sentence under 28 U.S.C.

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§ 2255 in the sentencing court, claiming ineffective assistance of counsel, among

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other claims. The motion was denied in May 2005. See Evans v. U.S.A., 4:03-cv-

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00636-JCH (E.D. Mo.), ECF Nos. 1, 12.

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In December 2009, petitioner filed a motion to reduce his sentence under 18

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U.S.C. § 3582(c) in the sentencing court. It was denied in June 2010. In August

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2010, the Eighth Circuit summarily affirmed the order denying relief. See U.S.A. v.

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Evans, 4:00-cr-00003-JCH-2, ECF Nos. 942, 957, 962.

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In October 2013, petitioner filed a motion in the Eighth Circuit for

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permission to file a successive habeas petition under § 2255 in the sentencing court,

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based on alleged sentencing errors. It was denied in January 2014. See Evans v.

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United States, 13-3189 (8th Cir.), ECF No. 7.

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Petitioner filed the instant Petition on July 5, 2016. Respondent filed a

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Motion to Dismiss the Petition on September 23, 2016. Petitioner did not file an

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Opposition within the allotted time or seek an extension of time to do so.

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On November 29, 2016, the Court issued a Report and Recommendation

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recommending that the Petition be dismissed without prejudice for lack of subject

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matter jurisdiction. On December 22, 2016, petitioner filed Objections. Based on

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the substance of the Objections, the Court issues this Final Report and

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Recommendation, which does not change the initial recommendation but addresses

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a few of petitioner’s points in the Objections.

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PETITIONER’S CLAIMS

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The Petition raises the following grounds for habeas relief:

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1.

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Petitioner is actually innocent of money laundering in Count 11,

particularly because of the Supreme Court’s decision in Santos. (Petition at 3;
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Petition Memorandum [“Petition Mem.”] at 9-14.)
2.

The evidence presented at trial was insufficient to support petitioner’s

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conviction of conspiracy to commit money laundering in Count 44. (Petition Mem.

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at 14-17.)

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3.

The jury was erroneously instructed during petitioner’s trial because it

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was not given the correct definition of “proceeds” and added an element of

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“coercion.” (Petition Mem. at 17-26.)

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4.

Petitioner’s sentence was substantially unreasonable compared to his

codefendants’ sentences and violated United States v. Booker, 543 U.S. 220 (2005).
(Petition Mem. at 26-30.)

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LEGAL STANDARD

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“Generally, motions to contest the legality of a sentence must be filed under

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§ 2255 in the sentencing court, while petitions that challenge the manner, location,

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or conditions of a sentence’s execution must be brought pursuant to § 2241 in the

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custodial court.” Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). “There is

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an exception, however, set forth in § 2255: A federal prisoner may file a habeas

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petition under § 2241 to challenge the legality of a sentence when the prisoner’s

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remedy under § 2255 is ‘inadequate or ineffective to test the legality of his

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detention.’” Id. (quoting 28 U.S.C. § 2255). “We refer to this section of § 2255 as

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the ‘savings clause,’ or the ‘escape hatch.’” Id. (citation omitted).

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A § 2241 petition may be brought under § 2255’s “savings clause” or

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“escape hatch” when a petitioner (1) makes a claim of actual innocence, and (2) has

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not had an “unobstructed procedural shot” at presenting that claim. See Harrison,

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519 F.3d at 959; Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). A

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petitioner must satisfy both requirements to invoke the savings clause.

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Stephens, 464 F.3d at 898-99 (savings clause was inapplicable solely because of

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petitioner’s failure to make a claim of actual innocence).
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See

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Further, a claim of actual innocence for purposes of the savings clause of

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§ 2255 is tested by the standard articulated by the Supreme Court in Bousley v.

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United States, 523 U.S. 614 (1998) − i.e., the petitioner “must demonstrate that, in

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light of all the evidence, it is more likely than not that no reasonable juror would

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have convicted him.” See Stephens, 464 F.3d at 898 (citing Bousley, 523 U.S. at

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623); see also Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000).

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DISCUSSION

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A.

Ground One does not qualify for the savings clause.

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In Ground One, petitioner claims that he is actually innocent of the money

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laundering offense in Count 11, particularly in light of the Supreme Court’s

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decision in Santos. (Petition Mem. at 9-14.)

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At the time of petitioner’s trial, the money laundering statute, 18 U.S.C.
§ 1956 (a)(1), stated in pertinent part (emphasis added):

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Whoever, knowing that the property involved in a financial transaction

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represents the proceeds of some form of unlawful activity, conducts or

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attempts to conduct such a financial transaction which in fact involves

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the proceeds of specified unlawful activity . . . with the intent to

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promote the carrying on of specified unlawful activity . . . shall be

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sentenced to a fine of not more than $500,000 or twice the value of the

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property involved in the transaction, whichever is greater, or

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imprisonment for not more than twenty years, or both.

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In Santos, 553 U.S. at 510, the Supreme Court considered whether the term

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“proceeds,” which was not explicitly defined in the money laundering statute,

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meant profits or receipts. Five justices in Santos (composed of a four-justice

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plurality and a one-justice concurrence) concluded that, in the specific case of

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money laundering from an illegal lottery, the rule of lenity required the term
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“proceeds” to be interpreted as profits rather than receipts. See Santos, 553 U.S. at

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514 (plurality op. of Scalia, J.); 553 U.S. at 528 (concurring op. of Stevens, J.).

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After Santos was decided, Congress amended the money laundering statute

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in 2009 to define “proceeds” as receipts.

This amendment is not retroactive,

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however, so it does not dispose of petitioner’s Santos challenge to his 2000

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conviction. See United States v. Grasso, 724 F.3d 1077, 1091-92 (9th Cir. 2013).

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Petitioner was convicted of money laundering in Count 11 because he used

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some of the money generated from prostitution activity to buy a 1987 Mercury

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Topaz. See Evans, 272 F.3d at 1082. He argues that he is actually innocent of the

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money laundering offense because, under Santos, the Topaz was a business expense

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(for transporting a prostitute) which he purchased with receipts rather than profits.

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(Petition Mem. at 9-10.)

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Assuming without deciding that petitioner did purchase the Topaz with

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receipts from prostitution activity, petitioner’s reliance on Santos still is misplaced.

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No opinion in Santos commanded a majority of votes, so the holding is limited to

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the narrowest grounds supporting the result. See Marks v. United States, 430 U.S.

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188, 193 (1977). The Ninth Circuit has held that the only issue uniting five justices

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in Santos was the desire to avoid a “merger problem.” See United States v. Van

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Alstyne, 584 F.3d 803, 814 (9th Cir. 2009) (“Only the desire to avoid a ‘merger

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problem’ united the five justices [in Santos].”).

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Five justices in Santos found a merger problem in the specific context of

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money laundering from an illegal lottery: “If ‘proceeds’ meant ‘receipts,’ nearly

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every violation of the illegal-lottery statute would also be a violation of the money-

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laundering statute, because paying a winning bettor is a transaction involving

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receipts that the defendant intends to promote the carrying on of the lottery. Since

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few lotteries, if any, will not pay their winners, the statute criminalizing illegal

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lotteries would ‘merge’ with the money-laundering statute.” See Santos, 553 U.S.

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at 515-56 (plurality op. of Scalia, J.); see also id. at 527 (money laundering from an
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illegal gambling business “runs squarely into what can be characterized as the

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‘merger’ problem”) (concurring op. of Stevens, J.). Accordingly, “the holding that

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commanded five votes in Santos” is that “proceeds means profits where viewing

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proceeds as receipts would present a merger problem of the kind that troubled the

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plurality and concurrence in Santos.” See Van Alstyne, 584 F.3d at 814 (internal

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quotation marks omitted).

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The Ninth Circuit has identified three factors to consider in determining

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whether a merger problem under Santos exists: (1) whether a given transaction was

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a “central component” of the underlying scheme; (2) whether the money laundering

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charges led to a radical increase in the statutory maximum for the underlying

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offense; and (3) whether the money involved transfers among co-conspirators. See

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Grasso, 724 F.3d at 1092-93. Based on the weight of these factors, no merger

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problem existed in this case.

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1.

Grasso factors with respect to Ground One.

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Under the first factor identified in Grasso, petitioner’s purchase of the

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Mercury Topaz, for purposes of Count 11, was not a central component of the

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underlying scheme of interstate prostitution. According to court records and the

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Eighth Circuit’s opinion on direct appeal, petitioner participated in a wide-ranging

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prostitution ring which started in the early 1980s, involved the transportation and

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use of several prostitutes through several states and Canada, and was operated by

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several defendants for two decades. See Evans, 272 F.3d at 1077; see also Evans,

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13-3189, ECF No. 3. Petitioner purchased the Topaz in 1997, near the end of the

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scheme, with $1,000 that one of his prostitutes gave him from her earnings, and he

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drove it only within the state of Missouri. See Evans, 272 F.3d at 1080; Petition

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Mem. at 11. Although petitioner alleges that he purchased the Topaz to transport

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the prostitute who gave him the money to buy it (Petition Mem. at 9-10), this

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supposed “business reason” did not render the purchase of the Topaz a central
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component of the prostitution ring. See Grasso, 724 F.3d at 1095 (finding no

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merger problem where the scheme “operated successfully for several years” before

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the money laundering); United States v. Bush, 626 F.3d 527, 538 (9th Cir. 2010)

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(same where the defendant had “operated his scheme for several years” before the

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money laundering).

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In his Objections, petitioner again contends that the purchase of a Mercury

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Topaz was “central” because he used it only to transport one of his prostitutes,

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Eleana Garcia, to her prostitution calls. (Objections at 10, 16-19.) As discussed

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above, however, the purchase of the Topaz was not central to the overall

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prostitution ring, which spanned almost two decades, was conducted in several

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states and Canada, and involved several prostitutes other than Garcia. Moreover, as

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detailed by the Eighth Circuit’s opinion on direct appeal, United States v. Evans,

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272 F.3d 1069, 1083 (8th Cir. 2001), many of petitioner’s offenses relating to the

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underlying prostitution ring involved several prostitutes other than Ms. Garcia and

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had nothing to do with the Topaz:

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In the course of promoting prostitution, [petitioner] traveled

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with and stayed in hotels with other defendants. In addition, Ms.

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Garcia testified that she received referrals for prostitution from Tonya

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May, one of LeVorn Evans’s prostitutes, and that she and Ms. May

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participated in “two-girl calls,” in which they engaged in sex for

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money and shared the proceeds. Ms. May and Julia Wilson, one of

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Monroe Evans’s prostitutes, testified that they drove Ms. Garcia on

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prostitution calls.

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Roberts’s prostitutes, testified that, following Ms. Wilson’s arrest on

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state charges of prostitution, she witnessed a meeting involving all of

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the defendants concerning a statement that Ms. Wilson had made

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implicating the defendants.

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[petitioner’s] conviction of conspiracy to violate the Mann Act.

Finally, Deanna Kirkman, one of Terrance

This evidence suffices to uphold

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....

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Latoya Madison, an acquaintance of Ms. Garcia, testified that

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she took a message to [petitioner].

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message, she was directed to a back room, where [petitioner] asked her

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if she would work for him as a prostitute. When she refused, he had

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her raped by three men, after which he again asked if she would work

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for him. When she again refused, he said that he would have people

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continue to rape her until she agreed.

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After arriving to deliver the

....

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[Petitioner] misconstrues this testimony as character evidence to

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be evaluated under Rule 404(b) when, in fact, it is direct evidence of

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the Mann Act violations and the conspiracy. The rape — along with

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various other violent acts introduced into evidence — were actions

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taken to recruit, control, and discipline prostitutes.

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In light of these facts reflecting petitioner’s participation in a wide-ranging

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prostitution ring, the Court continues to find that petitioner’s conviction of money

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laundering in Count 11, based on his purchase of the Mercury Topaz to transport

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Ms. Garcia on her prostitution calls, presented no merger problem under Santos.

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In his Objections, petitioner clearly argues for the first time that that his

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conviction of conspiracy to commit money laundering in Count 44 also presented a

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merger problem under Santos.

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petitioner’s Santos argument was directed to Count 11. Petitioner had the ability

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and opportunity to raise his specific allegations as to his Santos claim for Count 44

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in the Petition, but he failed to do so. The Court therefore need not address this

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argument as to Count 44. See United States v. Howell, 231 F.3d 615, 623 (9th Cir.

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2000) (factual allegations that are fleshed out in detail for the first time in

(Objections at 21-23.) In his initial Petition,

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objections to the magistrate judge’s report and recommendation need not be

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addressed).

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But in any event, petitioner’s conviction of money-laundering conspiracy in

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Count 44 presented no merger problem under Santos for the same reasons that

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Count 11 presented no merger problem.

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petitioner’s conspiracy with Ms. Garcia to launder her prostitution earnings in order

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to pay for not only the Mercury Topaz, but also other expenses for Ms. Garcia, such

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as motel rooms, escort agency fees, and advertisements. (Objections at 22-23.) See

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also Evans, 272 F.3d at 1082. These purchases were not a central component of

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petitioner’s participation in the underlying prostitution scheme which, as detailed

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above, substantially involved prostitutes other than Ms. Garcia and acts other than

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the promotion of her prostitution activity.

The factual basis of Count 44 was

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In sum, petitioner’s purchase of the Mercury Topaz and payment of other

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expenses for Ms. Garcia’s prostitution activity, so as to support his convictions of

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Counts 11 and 44, were not central to the overall prostitution scheme within the

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meaning of the first factor identified in Grasso.

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Under the second factor identified in Grasso, the inclusion of the money

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laundering charges did not threaten a radical increase in the statutory maximum

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sentence for petitioner’s underlying offenses. According to the Eighth Circuit’s

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opinion on direct appeal, the statutory maximum for petitioner’s crimes of

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conviction was 1,020 months. See Evans, 272 F.3d at 1077. Of this total, 540

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months was for six underlying offenses relating to the operation of a prostitution

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ring, while 240 months was for money laundering.1 See Evans, 4:03-cv-00636-

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Specifically, petitioner’s sentence was calculated as follows: 240 months for money
laundering (Count 11); 240 months for conspiracy to commit money laundering (Count 44); 60
months for conspiracy relating to interstate transportation of individuals for purpose of
prostitution (Count 1); 60 months for misuse of a Social Security number (Count 9); 60 months
for inducement of an individual to travel in interstate commerce for purpose of prostitution
(Count 14); and 120 months for each of three counts of interstate transportation of a minor for
purpose of prostitution (Counts 10, 12, 13). See Evans, 4:03-cv-00636-JCH, ECF No. 12 at 2.
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JCH, ECF No. 12 at 2. The statutory maximum of 540 months for the underlying

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offenses was not radically less than, but rather exceeded, the 240 months for money

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laundering.

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exceeded the 480 months for both money laundering crimes. See Grasso, 724 F.3d

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at 1092 (second “merger” factor applies only when the statutory maximum for the

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underlying crimes is “radically less” than that for the money laundering offenses).

Indeed, the statutory maximum for the underlying offenses also

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Under the third factor identified in Grasso, the money used to buy the Topaz

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appeared to be the result of a transfer among co-conspirators and therefore, the

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money arguably constituted “proceeds” from the prostitution scheme within the

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meaning of the money laundering statute.

As the Eighth Circuit found on

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petitioner’s direct appeal, the prostitute who gave petitioner the money to buy the

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Topaz was petitioner’s co-conspirator with respect to the handling of the money

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earned from the underlying prostitution scheme. See Evans, 272 F.3d at 1082.

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Although the Ninth Circuit has not explained this factor at great length or explicitly

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applied it to money laundering with underlying schemes involving prostitution, it

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has extended the co-conspirator factor to money laundering with underlying

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schemes involving the sale of contraband, fraud, and bribery. See Grasso, 724 F.3d

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at 1093-94 (citing United States v. Webster, 623 F.3d 901, 906 (9th Cir. 2010); and

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United States v. Wilkes, 662 F.3d 524, 548-49 (9th Cir. 2011)). Assuming that this

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third factor could be applicable to the underlying scheme in this case, it would

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militate toward finding no merger problem. In any event, the first two factors also

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strongly weigh against a merger problem.

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In sum, the weight of the factors identified in Grasso, particularly the first

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and second factors, leads to the conclusion that there is no merger problem under

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Santos. Petitioner therefore does not qualify for the savings clause of § 2255 on

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this basis. See Gamboa v. Norwood, 380 F. App’x 613, 614 (9th Cir. 2010)

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(savings clause was inapplicable where petitioner’s conviction for money

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laundering did not raise a merger problem under Santos).
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2.

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Additional arguments with respect to Ground One.

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Relatedly, petitioner contends that he is actually innocent of money

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laundering in Count 11 because he did not purchase the Topaz in order to “conceal”

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the prostitution activity, as generally would occur in money laundering transactions.

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(Petition Mem. at 13-14) This argument is misplaced because petitioner was not

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convicted of “concealment” money laundering under 18 U.S.C. § 1956 (a)(1)(B)(i),

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but

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§ 1956 (a)(1)(A)(i.).

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“Promotional money laundering is ‘different from traditional money laundering

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because the criminalized act is the reinvestment of illegal proceeds rather than the

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concealment of those proceeds.’” Wilkes, 662 F.3d at 548 (quoting United States v.

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Jolivet, 224 F.3d 902, 909 (8th Cir. 2000)). Petitioner therefore has not raised a

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cognizable claim of actual innocence on this basis.

rather

was

convicted

of

“promotional”

money

laundering

under

See Evans, 4:03-cv-00636-JCH, ECF No. 12 at 1.

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In his Objections, petitioner further contends that the savings clause applies

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because, under the second prong of the savings clause, he did not have an

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“unobstructed procedural shot” at raising his Santos claim in the sentencing court.

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(Objections at 9.)

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Petitioner’s claim in Ground One does not qualify for the savings clause solely

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because petitioner had failed to raise a claim of actual innocence. See Stephens,

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464 F.3d at 898-99 (savings clause was inapplicable solely because of petitioner’s

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failure to make a claim of actual innocence).

The Court need not make any finding as to this issue.

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B.

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None of petitioner’s remaining claims in Grounds Two to Four of the Petition

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Grounds Two to Four do not qualify for the savings clause.

qualifies for the savings clause of § 2255.

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In Ground Two, petitioner claims that the evidence presented at trial was

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insufficient to support his conviction of conspiracy to commit money laundering in

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Count 44. (Petition Mem. at 14-17.) However, an insufficiency-of-the-evidence
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claim fails to raise a claim of actual innocence within the meaning of the savings

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clause. See Bousley, 523 U.S. at 624 (“It is important to note in this regard that

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‘actual innocence’ means factual innocence, not mere legal insufficiency.”).

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Moreover, petitioner cannot claim that he did not have an unobstructed procedural

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shot at raising this claim because he did in fact raise this claim on direct appeal, and

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the Eighth Circuit rejected it. See Evans, 272 F.3d at 1082-83.

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In Ground Three, petitioner claims instructional error because (a) the jury

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was not instructed on the definition of the term “proceeds” consistent with Santos;

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and (b) the jury instructions added an element of “coercion” to the Mann Act

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offenses that was not included in the indictment. (Petition Mem. at 17-26.) The

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first part of this claim, premised on petitioner’s argument under Santos, is

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foreclosed by the Court’s findings above. See United States v. Phillips, 704 F.3d

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754, 766 (9th Cir. 2012) (instructional error claim based on Santos was foreclosed

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where no merger problem existed).

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The second part of this claim is insufficient to raise a claim of actual

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innocence within the meaning of the savings clause. See Stephens, 464 F.3d at 899

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(“[T]he mere fact of an improper instruction is not sufficient to meet the test for

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actual innocence”). Moreover, petitioner cannot claim that he did not have an

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unobstructed procedural shot at raising this second part of the claim because it

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appears that he did in fact raise a variation of this claim in his § 2255 proceeding,

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and it was rejected. See Evans, 4:03-cv-00636-JCH, ECF No. 12 at 15. In any

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event, nothing would have prevented petitioner from raising this claim in a timely

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manner in the sentencing court. See Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir.

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2003) (to show that he was denied an “unobstructed procedural shot,” a habeas

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petitioner must demonstrate that he never had the opportunity to raise the claim by

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motion).

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In Ground Four, petitioner claims that the trial court committed sentencing

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error by imposing a sentence that was harsher than what his codefendants received
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and by applying the Sentencing Guidelines in violation of United States v. Booker,

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543 U.S. 220 (2005). (Petition Mem. at 26-30.) Petitioner’s claims of sentencing

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error have nothing to do with his factual innocence of the crimes of conviction and

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therefore are also insufficient to invoke the savings clause. See Padilla v. United

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States, 416 F.3d 424, 427 (5th Cir. 2005) (claim of Booker error is insufficient to

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invoke the savings clause); see also Marrero v. Ives, 682 F.3d 1190, 1193-94 (9th

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Cir. 2012) (claim of improper classification as a career offender under the

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Sentencing Guidelines fails to raise a cognizable claim of actual innocence, and

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citing cases holding that claims of noncapital sentencing error do not qualify for the

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savings clause). Petitioner would not be entitled to relief under Booker in any event

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because Booker does not apply retroactively on collateral review to convictions that

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were final when it was decided. See United States v. Cruz, 423 F.3d 1119, 1120-21

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(9th Cir. 2005).

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unobstructed procedural shot at raising this claim because he did in fact raise a

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variation of this sentencing-error claim in his § 2255 proceeding, and it was

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rejected. See Evans, 4:03-cv-00636-JCH, ECF No. 12 at 14-15.

Moreover, petitioner cannot claim that he did not have an

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C.

Transfer of this action is inappropriate.

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The only remaining question is whether this action should be transferred to

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any other court in which the action could have been brought. See 28 U.S.C. § 1631.

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“Because the statute’s language is mandatory, federal courts should consider

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transfer without motion by the parties.” Cruz-Aguilera v. I.N.S., 245 F.3d 1070,

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1074 (9th Cir. 2001). “Transfer is appropriate under § 1631 if three conditions are

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met: (1) the transferring court lacks jurisdiction; (2) the transferee court could have

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exercised jurisdiction at the time the action was filed; and (3) the transfer is in the

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interest of justice.” Id.

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Here, the interests of justice would not be served by transferring this action to

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any other court. Petitioner previously filed a § 2255 petition in the sentencing
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court, and he could not meet the requirements to obtain permission to file a

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successive § 2255 petition there.

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successive motion by petitioner would have to be certified by the Eighth Circuit to

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“contain (1) newly discovered evidence that, if proven and viewed in light of the

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evidence as a whole, would be sufficient to establish by clear and convincing

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evidence that no reasonable factfinder would have found the movant guilty of the

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offense; or (2) a new rule of constitutional law, made retroactive to cases on

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collateral review by the Supreme Court, that was previously unavailable.” Neither

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requirement is met here.

Under 28 U.S.C. § 2255(h), a second or

Petitioner has not submitted any newly discovered

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evidence of his actual innocence.

Moreover, Santos is not a new rule of

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constitutional law made retroactive to cases on collateral review by the Supreme

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Court. See Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2010) (noting that a

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Santos claim would not meet the requirements for a successive petition under

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§ 2255(h)); Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012) (same).2

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In any event, the Eighth Circuit has interpreted Santos narrowly so that it

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would not apply to petitioner’s case: Because petitioner’s underlying offenses

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based on the prostitution ring were distinct from and did not require the money

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laundering offense, no merger problem would arise.

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Rubashkin, 655 F.3d 849, 866-67 (8th Cir. 2011) (finding no merger problem under

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Santos where the underlying offense of making false statements to a bank was a

See United States v.

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Although Santos did not announce a new rule of constitutional law for purposes of
§ 2255(h), it did substantively change the reach of the federal money laundering statute. See
Wooten, 677 F.3d at 308 (Santos did not provide a basis for a successive petition under § 2255(h),
but it did provide a new interpretation of the money laundering statute); Garland v. Roy, 615 F.3d
391, 397 (5th Cir. 2010) (describing Santos as a “substantive, non-constitutional decision[s]
concerning the reach of a federal statute”) (citations omitted). Accordingly, Santos is relevant to
determine whether petitioner’s claim may proceed under the savings clause of § 2255 on the
ground that he is actually innocent of a violation of the “laws of the United States,” but it is
unavailable as a new rule of constitutional law for purposes of filing a successive petition under
§ 2255(h). See Davis v. United States, 417 U.S. 333, 343-46 (1974) (challenge under § 2255 that
is grounded not in the Constitution, but on a violation of the “laws of the United States,” is
permissible).
2

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“distinct offense compared to money laundering” and “did not require the types of

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payments which gave rise to the money laundering charges”). In other words, the

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money laundering was “not essential to his overall scheme in the same way” as in

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Santos and similar cases. See id. at 867.

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Moreover, petitioner’s non-Santos arguments already have been rejected by

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the sentencing court and the Eighth Circuit, as noted above. See Puri v. Gonzales,

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464 F.3d 1038, 1043 (9th Cir. 2006) (declining to transfer action that was

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previously dismissed by transferee court, and noting that a transfer request would

9

be an attempt to circumvent the earlier order of dismissal). In sum, transfer of this

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action is inappropriate. See Clark v. Busey, 959 F.2d 808, 812 (9th Cir. 1992)

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(“Transfer is also improper where the plaintiff fails to make a prima facie showing

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of a right to relief, because the interests of justice would not be served by transfer of

13

such a case.”).

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RECOMMENDATION

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IT THEREFORE IS RECOMMENDED that the District Court issue an

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Order:

(1) approving and accepting this Final Report and Recommendation;

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(2) granting respondent’s Motion to Dismiss; and (3) directing that Judgment be

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entered dismissing this action without prejudice for lack of subject matter

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jurisdiction.

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DATED: January 4, 2017

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____________________________________
ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

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