Bamdad v. Holder et al

Filing 4

ORDER DISMISSING CASE without prejudice. Signed by Chief Judge David R. Herndon on 8/20/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MASOUD BAMDAD,
No. 47237-112,
Petitioner,
vs.

Case No. 14-cv-853-DRH

ERIC HOLDER and
JEFFREY WALTON,
Respondents.

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner

Masoud

Bamdad,

currently

incarcerated

in

Marion-U.S.

Penitentiary, Illinois, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2241.

Petitioner asserts that he has been “unlawfully and unconstitutionally

prosecuted, convicted, and sentenced” and that, therefore, he is entitled to
immediate release from incarceration. This case is now before the Court for a
preliminary review of the petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in United States District Courts.
Rule 4 provides that upon preliminary consideration by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Rule 1(b) of those Rules gives
this Court the authority to apply the rules to other habeas corpus cases, such as
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this action under 28 U.S.C. § 2241. After carefully reviewing the petition, the
Court concludes that this action is subject to dismissal.
Procedural History
On May 6, 2009, petitioner was found guilty of ten counts of unlawfully
distributing oxycodone, in violation of 21 U.S.C. § 841(a)(1), and an additional
three counts of unlawfully distributing oxycodone to persons under the age of 21,
in violation of 21 U.S.C. § 859, following a nine-day jury trial in the United States
District Court for the Central District of California. (Doc. 1, p. 14). The jury was
hung on four additional counts, including a count alleging illegal distribution
resulting in death. Id. On July 29, 2010, petitioner was sentenced to 25 years of
imprisonment, six years of supervised release, and a $1,000,000 fine.

Id.

Petitioner filed a timely appeal with the Ninth Circuit Court of Appeals. In that
appeal petitioner raised five issues: 1) the insufficiency of the evidence to convict;
2) the district court’s decision not to give a cautionary instruction regarding the
government’s playback of undercover cop tapes during jury deliberations was
reversible error; 3) the government’s evidence on the “death count” resulted in
retroactive misjoinder due to prejudicial spillover; 4) error based on the district
court’s denial of a motion to suppress evidence based on an alleged defective. See
United States v. Bamdad, 459 F. App’x 653 (9th Cir. 2011). On November 23,
2011, the Ninth Circuit issued an opinion affirming the conviction and sentence.
Id.

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On June 21, 2012, petitioner filed a motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 with the United States District Court for
the Central District of California. (See United States v. Bamdad, CR-08-0506,
Doc. 338). In this § 2255 petition, petitioner challenged his conviction on thirtyfive grounds.

On May 6, 2013, the district court denied this post-conviction

appeal in a 39-page order, which organized the claims into the following seven
categories: 1) the court lacked jurisdiction because the practice of medicine
should not be regulated by federal law; 2) Fourth Amendment violations related to
the search of petitioner’s office without a proper warrant; 3) selective prosecution;
4) denial of effective assistance of counsel; 5) actual innocence; 6) prosecutorial
misconduct; and 4) illegal sentence based on wrong information. United States
v. Bamdad, CR-08-0506, Doc. 387, p. 1-2.

The district court and the Ninth

Circuit Court of Appeals both denied petitioner’s request for a certificate of
appealability. See id. Doc. 393, 413.

Petitioner subsequently filed a flurry of

motions and notices requesting various forms of relief including a motion to alter
or amend the court’s order on the § 2255 petition (Doc. 399); revised request for
certification of appealability (Doc. 403); motion to recuse judge (Doc. 414); and
notice of motion filed with the Ninth Circuit appealing order denying the motion to
recuse judge (Doc. 427). Petitioner has been denied relief on all of these motions.
Id. Having exhausted all avenues for relief under his first § 2255 petition, on
June 16, 2014, petitioner filed a motion with the Ninth Circuit Court of Appeals
requesting permission to file a second or successive § 2255 petition. Petitioner

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did not disclose this pending motion to the Court; rather, the Court discovered
this motion in its review of the Public Access to Court Electronic Records
(“PACER”) website (www.pacer.gov).

Court documents are, of course, public

records of which the Court can take judicial notice. See Henson v. CSC Credit
Servs., 29 F.3d 280, 284 (7th Cir. 1994). This motion has yet to be ruled on. See
Bamdad v. United States, 14-71659 (9th Cir. 2014).
The Habeas Petition
In the instant petition, filed on July 29, 2014, petitioner asserts that he is
entitled to habeas relief under 28 U.S.C. § 2241 based upon recent United States
Supreme Court decisions that substantively changed the law.

(Doc. 1, p. 12).

Specifically, petitioner raises the following claims: 1) the indictment was defective
because the federal government does not have the authority to regulate medical
practitioners; 2) petitioner’s constitutional rights under the Fourth and Fifth
amendments to the United States Constitution were violated when agents
searched his office without a proper warrant; 3) the “death count” in the
indictment was unreasonable and unfairly prejudiced the jury and judge; and 4)
the preponderance-of-the-evidence standard used by the judge to determine the
amount of oxycodone distributed was erroneous.

In addition to these claims,

which petitioner maintains are supported by new case law, petitioner also
reiterates his claim of actual innocence and ineffective assistance of counsel.
Petitioner asserts that he may bring these claims under the “savings clause” of 28
U.S.C. § 2255(e) because new Supreme Court decisions establish that he is

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“legally and actually (factually) innocent of his conviction and imposed sentence.”
Id.
Discussion
This Court finds it particularly curious that petitioner set out the
procedural history of his case in great detail, but failed to mention in his motion
or memorandum that he has a current motion requesting permission to file a
second or successive § 2255 petition pending before the Ninth Circuit Court of
Appeals. This is a serious omission. The Court will not speculate whether the
omission was deliberate or unintentional.

However, petitioner is advised that

“courts may impose appropriate sanctions, including dismissal or default, against
litigants who violate discovery rules and other rules and orders designed to enable
judges to control their dockets and manage the flow of litigation.” Hoskins v. Dart,
633 F.3d 541, 543 (7th Cir. 2011) (collecting cases). The Court need not
determine whether dismissal is warranted in this case since dismissal is
appropriate on alternative grounds.
Weeks after filing a motion with the Ninth Circuit Court of Appeals
requesting permission to file a second or successive § 2255 petition, petitioner
filed the present motion raising nearly identical claims. This is not permissible.
There are policy considerations related to finality, consistency, and the efficient
use of judicial resources that bar both the re-litigation of identical claims and the
concurrent litigation of identical claims in separate forums. Because the motion
pending before the Ninth Circuit was filed first, this Court will dismiss the present

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petition without prejudice and allow this matter to proceed on the motion filed in
the Ninth Circuit. 1
Disposition
For the foregoing reasons, the petition is summarily DISMISSED without
prejudice. All pending motions are DENIED as MOOT.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4).
A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal.

See FED. R. APP. P. 24(a)(1)(C).

If

petitioner does choose to appeal and is allowed to proceed IFP, he will be liable
for a portion of the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past six months)
irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan
v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d
464, 467 (7th Cir. 1998). A timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline. 2

It is not necessary for

petitioner to obtain a certificate of appealability from this disposition of his
§ 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
1

Moreover, the fact that petitioner, just weeks before filing the present petition, filed a petition
with the Ninth Circuit Court of Appeals requesting permission to file a second or successive §
2255 belies his assertion in the present petition that “28 U.S.C. § 2255 provides an inadequate or
ineffective remedy to test the legality of Bamdad’s detention based upon the substantive changes in
law by the United States Supreme Court.” (Doc. 1, p. 12). Other than this vague assertion,
petitioner has not explained why this action should proceed under § 2241 rather than § 2255.
2
A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days after the
entry of the judgment. FED. R. CIV. P. 59(e).
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The Clerk is DIRECTED to close this case and enter judgment accordingly.

Digitally signed by
David R. Herndon
Date: 2014.08.20
15:28:51 -05'00'

IT IS SO ORDERED.
Dated: August 20, 2014

Chief Judge
United States District Court

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