Shrader v. Zuniga

Filing 7

FINDINGS and RECOMMENDATION Regarding 1 Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Assign District Court Judge to the Present Matter, signed by Magistrate Judge Michael J. Seng on 03/24/15. Thirty-Day Deadline. Referred to Judge O'Neill. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-00439 MJS (HC)
THOMAS C. SHRADER,

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FINDINGS
AND
RECOMMENDATION
REGARDING PETITION FOR WRIT OF
Petitioner,
HABEAS CORPUS

v.

ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER

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RAFAEL ZUNIGA,

(Doc. 1)
Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.
Petitioner filed the instant habeas petition in this Court on March 20, 2015. He is
currently incarcerated at Federal Correctional Institution Mendota. Petitioner was
convicted in the Southern District of West Virginia of two counts of stalking via a facility
of interstate commerce in violation of 18 U.S.C. § 2261A(2) and one count of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). United States v.
Shrader, 675 F.3d 300, 305 (4th Cir. 2012). Petitioner was convicted of all three counts
and, on August 20, 2010, was sentenced to 235 months in prison followed by five years
of supervised release. Id. at 306; see Pet., ECF No. 1 at 2. Petitioner argues that his

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incarceration was unconstitutional as the enhancements to the sentence were based on

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invalid state convictions. (See generally Am. Pet.)

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I.

SCREENING THE PETITION

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Because the petition was filed after April 24, 1996, the effective date of the

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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA applies to the

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petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,

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1499 (9th Cir. 1997).

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The Rules Governing Section 2254 Cases in the United States District Courts

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(Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28

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U.S.C. § 2241. Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a

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preliminary review of each petition for writ of habeas corpus. The Court must summarily

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dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that

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the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v.

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Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490

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(9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief

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available to the Petitioner; 2) state the facts supporting each ground; and 3) state the

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relief requested. Notice pleading is not sufficient; rather, the petition must state facts that

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point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976

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Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S.

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63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably

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incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

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Further, the Court may dismiss a petition for writ of habeas corpus either on its

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own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or

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after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule

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8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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II.

JURISDICTION

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A federal prisoner who wishes to challenge the validity or constitutionality of his

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conviction or sentence must do so by way of a motion to vacate, set aside, or correct the
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sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.

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1988). In such cases, only the sentencing court has jurisdiction. Id. at 1163. A prisoner

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may not collaterally attack a federal conviction or sentence by way of a petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861,

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865 (9th Cir. 2000) (“Generally, motions to contest the legality of a sentence must be

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

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location, or conditions of a sentence's execution must be brought pursuant to § 2241 in

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the custodial court.”); Tripati, 843 F.2d at 1162.

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In contrast, a federal prisoner challenging the manner, location, or conditions of

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that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C.

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§ 2241. Hernandez, 204 F.3d at 865. Here, Petitioner is challenging the validity and

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constitutionality of his conviction. Therefore, the appropriate procedure would be to file a

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motion pursuant to § 2255 and not a habeas petition pursuant to § 2241.

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The Ninth Circuit has recognized a narrow exception allowing a federal prisoner

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authorized to seek relief under § 2255 to seek relief under § 2241 if the remedy by

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motion under § 2255 is "inadequate or ineffective to test the validity of his detention."

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Alaimalo v. United States, 636 F.3d 1092, 1096 (9th Cir. 2011), citing Harrison v. Ollison,

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519 F.3d 952, 956 (9th Cir. 2008). "This is called the 'savings clause' or 'escape hatch' of

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§ 2255." Id. Furthermore, § 2255 petitions are rarely found to be inadequate or

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ineffective. Aronson v. May, 85 S.Ct. 3, 5 (1964) (a court's denial of a prior § 2255

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motion is insufficient to render § 2255 inadequate.); Tripati, 843 F.2d at 1162-63 (9th Cir.

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1988) (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition

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inadequate). The burden is on the petitioner to show that the remedy is inadequate or

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ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).

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The Ninth Circuit has also “held that a § 2241 petition is available under the

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‘escape hatch’ of § 2255 when a petitioner (1) makes a claim of actual innocence, and

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(2) has not had an ‘unobstructed procedural shot’ at presenting that claim. Stephens v.

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Herrera, 464 F.3d 895, 898 (9th Cir. 2006).
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Petitioner fails to meet either of these requirements. In this case, Petitioner is

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challenging the validity and constitutionality of his federal sentence imposed by a federal

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court, rather than an error in the administration of his sentence. Therefore, the

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appropriate procedure would be to file a motion pursuant to § 2255 in the sentencing

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court, not a habeas petition pursuant to § 2241 in this Court.

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Petitioner did not lack an unobstructed opportunity to present his claims in his

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§2255 motion. Here, Petitioner has sought review of his federal petition many times.

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After his 2010 conviction, Petitioner appealed the decision to the Fourth Circuit, which

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denied his claims on appeal on April 4, 2012. The Court, in denying the appeal,

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explained the factual underpinnings of the offenses:
Over the course of more than three decades, Thomas Creighton
Shrader harassed and intimidated D.S. and later her husband R.S.,
causing them to fear for their safety and that of their children. He stands
convicted after trial of two counts of stalking through the use of a facility of
interstate commerce and one count of being a felon in possession of a
firearm. Shrader raises multiple issues in this appeal, including the
vagueness of the stalking statute and the length of his sentence.
Accepting his contentions, however, would undermine Congress' efforts to
protect people like D.S. and R.S. from precisely the sort of terrifying
conduct that took place in this case. We therefore affirm.
I.
A.
Starting sometime around 1973, while still a high school student in
McDowell County, West Virginia, D.S. began a relationship with Shrader.
Over time he became increasingly demanding and possessive, repeatedly
appearing uninvited at D.S.'s house. This led her to break off the
relationship in 1975 after approximately two years. When she did so, the
defendant threatened to kill D.S.'s two nephews if she did not continue
seeing him. Around the same time, the defendant physically assaulted
D.S. at her workplace, choking her in an elevator.
On July 16, 1975, the defendant confronted D.S. while she was at
home with her mother, Geneva Miller, and a family friend, Rusty Adams.
D.S. refused to leave with the defendant. Twenty minutes later, he
returned to her home with a high-powered rifle. Entering the house, he
shot and killed Rusty Adams in a side room. He next shot Geneva Miller,
who died ten days later of gangrene contracted in her wound. D.S. ran out
of the house, fleeing across the street to the home of her neighbor, John
Kowaleski. Shrader continued shooting and wounded Kowaleski in the
arm. The defendant was subdued and arrested, and was charged in West
Virginia state court with two counts of first degree murder in violation of W.
Va. Code § 61-2-1 and one count of unlawful wounding in violation of W.
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Va. Code § 61-2-9.
Shrader pled guilty to these charges on January 20, 1976, and was
sentenced to concurrent life sentences with a recommendation of mercy
on the murder charges as well as an additional year of incarceration for
the wounding offense. Approximately a year later, Shrader escaped from
prison. D.S. and her younger sister were taken into protective custody by
the state police. Shrader was recaptured and sentenced to an additional
year of imprisonment for the escape.
During his incarceration, Shrader continued to contact D.S. He sent
approximately fifteen to twenty letters to her at the bank where she
worked, repeatedly referencing his murder of D.S.'s friend and mother,
and causing D.S. to feel severely threatened. In 1978, the defendant filed
a lawsuit against D.S. in Mercer County, West Virginia, alleging that D.S.
had breached a promise to marry him and seeking $700,000 in damages
from her.
By this time, D.S. had married R.S. In 1979, they moved to Texas,
severing all ties with West Virginia, and took a variety of additional
precautions to ensure their safety and anonymity. This did not deter
Shrader, who wrote letters to D.S.'s father, mother-in-law, and sister,
asking whether D.S.'s family was involved in witchcraft, whether D.S. had
ever had an abortion, and requesting recent pictures of D.S. He alleged in
these letters that he pled guilty to the murders in 1975 to cover up a
conspiracy between himself and D.S., and threatened that he would
"convict [D.S.] of Rusties death." In 1993, Shrader was released from
prison on parole, and was released from parole in 1999.
Beginning on August 6, 2008, Shrader made a series of phone calls
to the unlisted number of D.S.'s Texas home. Speaking with D.S., he
identified himself and said, "I need to talk to your kids before we die." She
denied having children, but Shrader identified them by name. D.S. called
911, but the local police were unable to help her, even though D.S. made
clear that she was living in terror. The defendant called back at least four
times that evening. He spoke with R.S. as well as D.S., proclaiming to him
that D.S. "is my God and I would have done anything for my God," and
telling R.S. that he had obtained their contact information in Texas through
a Freedom of Information Act request for letters mailed by the parole
board notifying D.S. of Shrader's parole hearings.
As a result of these calls, D.S. became afraid for her children to
leave their home. R.S. began sleeping with a loaded shotgun under the
bed, prepared to defend his family. Shrader persisted, obtaining a
photograph of D.S.'s daughter from the website MySpace, and attempting
to call her as well. Shrader also showed his friend Carol Miller aerial
photographs of D.S.'s home in Texas, commenting about where he could
covertly observe the home from across the street. He also formulated a
plan to send underwear to D.S.'s daughter with the intent to anger D.S.
On October 30, 2009, R.S. received a UPS package addressed to
his wife at their Texas home. Inside was a thirty-two page letter from
Shrader. In the letter, Shrader warned D.S. that she had to read it "for
[her] own good . . . or don't read and face the consequences blindly." He
reiterated his delusion that the murders of Rusty Adams and Geneva
Miller were part of a plot hatched by D.S.: "Your plan didn't work and it
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cost the life of your mother." He claimed that D.S. had aborted their child,
wishing for "God to take one of your children's live's in an accident to show
me that you did have an abortion." Shrader described how he almost killed
D.S. in graphic detail:
You have failed to realize that the only reason (after
everything fell apart at your house that day), I did not shoot
you in the back that day as you ran down the middle of the
road for Kowalski's house. Was because I was so deeply in
love with you and believed you felt the same for me. Even
though while standing on the front porch of the house I had
the rifle raised and the cross hair's of the scope were dead
center between your shoulder blades. Bye-bye heart, byebye lungs, sternum and some ribs.
And he warned D.S. about possible physical violence against her:
"Be smart also! Realize I have never laid a finger on you or hurt you
physically. In fact I could have, like I told you earlier in this latter, while you
were running down the road. Or on the morning that I escaped from the
McDowell County Jail." Finally, he closed the letter with thinly-veiled
threats about the future, claiming that "It's time to face the piper." He
concluded that "From the date you receive this, I am allowing two (2)
weeks or 14 days to pass before I initiate my next step."
Understandably terrified, D.S. and R.S. contacted the FBI, which
secured a criminal complaint against Shrader and a warrant for his arrest.
On November 13, 2009, FBI agents went to the home that Shrader shared
with his aunt, Elizabeth Jones, to execute the arrest warrant. Shrader was
alone at the house when the agents arrived. He informed Special Agent
Terry Schwartz that there were firearms in the home, but refused to
consent to a search of the premises to recover them. While several agents
took the defendant into custody, Agent Schwartz and other officers
awaited Jones's return. Two hours later, she arrived, and consented to the
search. In the dining room of the home, officers found a cabinet containing
two shotguns and a rifle.
B.
Shrader was ultimately charged with two counts of stalking via a
facility of interstate commerce in violation of 18 U.S.C. § 2261A(2)—one
alleged that he targeted D.S. and the other that he targeted R.S.—and
one count of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). The counts were severed and two separate trials were
held, first on the firearms charge and subsequently on the two stalking
counts.
Prior to the firearms trial, Shrader moved to suppress the firearms
found in the house, arguing that the agents violated the Supreme Court's
decision in Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L.
Ed. 2d 208 (2006), by soliciting consent from his aunt after he had been
arrested even though he already refused permission for the search. The
district court denied the motion, finding that Randolph required the
defendant to be present at the time his aunt consented in order to object
to the search, and that there was "no evidence to suggest that [the
agents'] intent was to extraordinarily render Defendant away from the
scene to violate his Fourth Amendment rights."
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At the close of the firearms trial, Shrader requested that the court
instruct the jury that "[t]he mere proximity of the firearms to Mr. Shrader
goes only to the firearms' accessibility and not to the dominion or control
which must be proven in order to establish possession of the firearms."
The district court instead instructed the jury that "[e]vidence of the mere
proximity of the firearms to Mr. Shrader may establish only the firearms'
accessibility. However, the proximity of the firearms to Mr. Shrader may
also help to establish dominion and control depending on the inferences
you draw from the evidence presented in the case." Shrader's counsel
again objected, but was overruled, and Shrader was convicted on July 14,
2010.
Shrader filed a wide variety of motions prior to his stalking trial.
First, he moved to dismiss the indictment on the grounds that 18 U.S.C. §
2261A(2) was unconstitutionally vague. The district court disagreed,
finding that the plain terms of the statute, which incorporate a specific
intent requirement, were enough to provide "a person of ordinary
intelligence fair notice of what is prohibited." Second, Shrader filed a
motion to elect, seeking to compel the government to proceed on only one
of the stalking counts and arguing that the indictment was multiplicitous
because the stalking statute's unit of prosecution is the "course of
conduct" that the defendant engaged in. Again the district court disagreed,
finding that the unambiguous terms of the statute "define[ ] the unit of
prosecution as the 'person,'" and that the same course of conduct could
be prosecuted twice if the government could show "two different mens rea
on the part of a defendant" to target two different victims.
On August 20, 2010, the defendant was convicted of both counts in
the stalking trial. Prior to his sentencing, Shrader objected to the PreSentence Report's recommendation that he be sentenced under the
Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), due to his
prior convictions for murder, wounding, and escape. The government
conceded that the escape did not qualify as a felony under the ACCA,
because it was not subject to a penalty of greater than one year. As to his
other crimes, Shrader conceded that they met the statutory definition of
violent felonies, but disputed that they had been committed on different
occasions, as the ACCA requires. In response, the government offered
evidence that had been admitted at the stalking trial, including the
testimony of D.S. and the defendant's letter. Shrader disputed the use of
this evidence, arguing that it was not approved under the Supreme Court's
decision in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L.
Ed. 2d 205 (2005). The district court disagreed, finding that because "the
issue is not whether the crimes of conviction are violent crimes . . . but
whether or not they occurred on occasions separate from one another,"
Shepard was inapplicable. Finding that the evidence showed that the two
murders and the wounding were indeed separate occasions, the district
court sentenced Shrader as an armed career criminal to 235 months in
prison followed by five years of supervised release. This appeal followed.
We address each of the six issues that Shrader raises in turn.
United States v. Shrader, 675 F.3d 300, 302-306 (4th Cir. 2012).

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After the appeal, Petitioner filed a motion for a new trial with regard to the felon in

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possession of a firearm conviction, arguing that he did not stipulate to the fact that he
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had previously committed a felony and did not have the right to possess firearms. The

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motion was denied on June 4, 2013 by the district court. United States v. Shrader, 2013

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U.S. Dist. LEXIS 79128 (S.D. W. Va. June 3, 2013). The court found that Petitioner's

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arguments, including the argument that he was deaf and not aware of the stipulation,

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were not credible. (Id.) Petitioner also filed a motion for a new trial with regard to the

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stalking charges. United States v. Shrader, 2013 U.S. Dist. LEXIS 79420 (S.D. W. Va.

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June 5, 2013). The Court denied the motion, which argued that the letter sent to D.S.

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and R.S. should be suppressed because R.S. was acting as a government agent at the

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time that he opened the letter based his employment with the United States Air Force.

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(Id.) Petitioner next filed a motion to arrest judgment of his convictions, which was

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likewise denied on October 7, 2013. United States v. Shrader, 2013 U.S. Dist. LEXIS

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145171 (S.D. W. Va. Oct. 7, 2013).

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On March 5, 2013, Petitioner filed a petition under 28 U.S.C. § 2241 for writ of

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habeas corpus. Shrader v. Ives, 2013 U.S. Dist. LEXIS 122697, 2-3 (S.D. W. Va. Aug. 5,

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2013). Petitioner challenged the validity his conviction alleging that (1) his conviction for

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stalking was in violation of congressional intent; (2) the evidence used to convict him

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was the product of an unlawful search and seizure under Ninth Circuit precedent; and (3)

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the restoration of Petitioner's civil rights by the State of West Virginia "makes Petitioner

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innocent of any firearm violations." (Id.) On April 24, 2013, the District Court for the

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Central District of California transferred the matter to the Southern District of West

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Virginia after determining that Petitioner was challenging the validity of his conviction and

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sentence imposed by that court. (Id.)

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Upon transfer to the Southern District of West Virginia, the court granted

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Petitioner's request to withdraw the petition. Shrader v. Ives, 2013 U.S. Dist. LEXIS

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122697 (S.D. W. Va. Aug. 5, 2013); Shrader v. Ives, 2013 U.S. Dist. LEXIS 121729 (S.D.

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W. Va. Aug. 27, 2013).

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Petitioner then filed a petition under 28 U.S.C. § 2241 for writ of habeas corpus

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with this court on May 29, 2014. Shrader v. Ives, E.D. Cal. Case No. 1:14-cv-01269-LJO8

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MJS. The matter was dismissed on October 27, 2014. Shrader v. Gill, 2014 U.S. Dist.

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LEXIS 120319 (E.D. Cal. Aug. 26, 2014) (Findings and Recommendation adopted by

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District Judge on October 27, 2013).

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Petitioner has not yet sought relief by way of a petition under § 2255. However,

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Petitioner has presented insufficient arguments as to why § 2255 constitutes an

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"inadequate or ineffective" remedy for raising his claims. Petitioner's arguments that he

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qualifies for the escape hatch of § 2255 based on a claim of actual innocence are

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without merit. Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). Petitioner claims

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that he is actually innocent because his state convictions for murder are invalid and

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could not be relied upon to enhance the sentence of his present conviction. Specifically,

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Petitioner asserts that the facts did not support the required elements of the state law

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offense of first degree murder. Regardless, Petitioner has not challenged the factual

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underpinnings of the charges including that Petitioner shot the victims during the 1975

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incident. Regardless whether the killings met the elements required for first degree

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murder, Petitioner has provided the Court no reason to question whether Petitioner was

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factually innocent with regard to the state law convictions for murder. Accordingly, the

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Court finds that § 2241 is not the proper avenue for raising Petitioner's claims, and the

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petition should be dismissed for lack of jurisdiction.

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III.

CERTIFICATE OF APPEALABILITY

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A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal

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a district court's denial of his petition, and an appeal is only allowed in certain

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circumstances.

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statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253,

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which provides as follows:

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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).

The controlling

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court of
appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial a
person charged with a criminal offense against the United States, or to test the
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validity of such person's detention pending removal proceedings.

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(c)

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(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–

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(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.

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(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).

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If a court denies a petition, the court may only issue a certificate of appealability “if

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jurists of reason could disagree with the district court’s resolution of his constitutional

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claims or that jurists could conclude the issues presented are adequate to deserve

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encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529

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U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case,

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he must demonstrate “something more than the absence of frivolity or the existence of

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mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.

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In the present case, reasonable jurists would not find to be debatable or wrong

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the Court's determination that Petitioner is not entitled to federal habeas corpus relief nor

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would they find petitioner deserving of encouragement to proceed further. Petitioner has

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not made the required substantial showing of the denial of a constitutional right.

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Accordingly, the Court hereby declines to issue a certificate of appealability.

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IV.

RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ

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of habeas corpus be DISMISSED. The Court further ORDERS the Clerk of Court to

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assign a District Court Judge to the present matter.

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These Findings and Recommendations are submitted to the assigned United

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States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B)

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and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern
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District of California. Within thirty (30) days after being served with a copy, Petitioner

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may file written objections with the Court. Such a document should be captioned

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"Objections to Magistrate Judge's Findings and Recommendations. The Court will then

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review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is

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advised that failure to file objections within the specified time may waive the right

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to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014).

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IT IS SO ORDERED.
Dated:

March 24, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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