Fay v. Maye

Filing 3

MEMORANDUM AND ORDER ENTERED: This action is dismissed as successive and abusive and for lack of jurisdiction. Petitioner's motion 2 to proceed in forma pauperis is granted. The court hereby certifies that any appeal of this matter would not be taken in good faith. Signed by Senior District Judge Richard D. Rogers on 02/11/15. Mailed to pro se party Leighton Fay by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LEIGHTON FAY,
Petitioner,
v.

CASE NO.

14-3148-RDR

CLAUDE MAYE,
Warden,
Respondent.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary,
Leavenworth, Kansas.

Having screened the materials filed, the court

finds that the claims raised herein are either challenges to
petitioner’s federal convictions entered in another federal district
court over which this court lacks jurisdiction, or successive and
abusive challenges to parole revocation proceedings that in any event
fail to state a claim under § 2241.1
Petitioner has filed a Motion for Leave to Proceed in forma
pauperis together with the requisite financial information showing
that this motion should be granted.
The factual background for petitioner’s claims was set forth
by the Tenth Circuit Court of Appeals in one of Fay’s several prior
similar cases as follows:
1

Local court rule requires that a § 2241 petition be submitted upon
court-approved forms. Mr. Fay has not utilized the forms, and his petition is
deficient in this additional way.

1

In 1981, Fay was convicted and sentenced on federal assault
charges in the District of South Dakota. Subsequently,
Fay challenged his conviction and sentence. The Eighth
Circuit affirmed in part, reversed in part, and remanded
for additional proceedings. Fay is currently serving the
sentence that resulted from those proceedings.
Approximately 20 years ago, while serving a portion of his
sentence within the Eastern District of Washington, Fay
filed a petition for habeas corpus with the federal
district court there.
Eventually, the district court
determined Fay’s submission was a request for relief under
28 U.S.C. § 2255 and transferred the case to the District
of South Dakota.
In the District of South Dakota, Fay argued his conviction
and sentence were illegal, his transfer to state prison
was unconstitutional, and the court in which he was tried
and sentenced lacked jurisdiction over him. The District
of South Dakota dismissed Fay’s petition, and the Eighth
Circuit affirmed the dismissal.
Fay v. U.S., 389 Fed.Appx. 802, 802-03 (10th Cir. 2010).

Mr. Fay

alleges that he was sentenced to forty years and six months.
It is clear from the findings of the Tenth Circuit that, contrary
to Mr. Fay’s allegations, he is confined at the USPL for service of
his 1981 federal sentence.2

The Circuit’s findings also indicate

2

Fay claims that his present incarceration is “for assault charges that were
dismissed by the U.S. Attorney for South Dakota on a Motion to Dismiss in the
District Court.”
He cites “2007 CR 06-50086” as a case dated January 17, 2007,
which “proves there is no charge nor (sic) legal protected right to defend against
such charge in a court of law.” On this basis, he claims there is no conviction
for his present confinement.
Petitioner further alleges that he was released on parole in September 2004;
that same month he “was charged with escape from custody and parole revocation”
based on his alleged escape; he was acquitted of the escape charge after a jury
trial in South Dakota; but nevertheless, his parole was revoked, he was
re-incarcerated, and, he claims, “his sentence was extended two years by the Parole
Commission.” In addition, he alleges that he was subsequently paroled on his
mandatory release date in late 2005. However, this court has previously found
that Mr. Fay violated parole rules and ultimately the Parole Commission determined
that he would remain under its jurisdiction, as if on parole, until February 13,
2021. Fay v. Chester, 2010 WL 9462554, Case No. 08-3301 (D.Kan. Aug. 25, 2010),
affirmed, 413 Fed.Appx. 23 (10th Cir. 2011). In 2007, the Parole Commission

2

that Mr. Fay filed a § 2255 motion in the sentencing court in South
Dakota that was dismissed, and the Eighth Circuit affirmed.
Mr.

Fay

mainly

attempts

to

challenge

his

1981

federal

convictions or sentence on several grounds including ineffective
assistance of appellate counsel, that he was not present during his
resentencing, and multiplicity of counts or double jeopardy.

To the

extent that these and other claims can be understood from among Fay’s
numerous case citations and discussions, it appears that he is again
seeking to challenge his 1981 federal convictions and sentence as
well as related actions of the Parole Commission on grounds that he
either has, or could have, raised in prior unsuccessful actions.

See

Fay v. United States, Civ. No. 85-3977, p.3 (D.S.D. Apr. 23, 1986);
Fay v. Thornburgh, 1992 WL 63394 (D.S.D. Mar. 24, 1992); Fay v.
Chester, Case No. 08-3301-RDR (Aug. 25, 2010), aff’d, App.No.
10-3225, 2011 WL 397720 (10th Cir. Feb. 8, 2011);3 Fay v. United States
of America, 10-3105-SAC (March 10, 2010), appeal dismissed, App.No.
10-3073 (10th Cir. July 29, 2010).

Fay also repeats his claim that

he was somehow mistakenly targeted and accused of being an “A.I.M.
member,” which likewise appears to be a challenge to his conviction.
Not only has petitioner unsuccessfully presented these claims
conducted revocation proceedings upon additional charges, found that he had again
violated his parole, and continued him to the expiration of his sentence. Id.
3

In this prior action, Mr. Fay unsuccessfully claimed that he “had a ten year
sentence illegally imposed by the Parole Commission” when it improperly considered
an allegation that Mr. Fay had stabbed his wife in 1973 and a 1981 second-degree
murder charge of which he was acquitted. See id. at 7-8.

3

in prior actions and appeals, he has repeatedly been informed that
these and all other challenges to his convictions may only be raised
in a § 2255 motion filed in the sentencing court.

He has repeatedly

been informed that this court lacks jurisdiction to hear challenges
to his convictions that were entered in the District of South Dakota.
He has been repeatedly informed that since his first § 2255 motion
in the sentencing court was denied and affirmed on appeal, his
recourse is to seek authorization to file a successive § 2255 motion
from the Eighth Circuit Court of Appeals.

Although petitioner makes

a bald reference to the “savings clause,” he utterly fails to state
facts showing that a § 2255 motion would not have served to litigate
all his current challenges to his convictions, as he must in order
invoke § 2241 review under this narrow exception.

This court again

holds that it lacks jurisdiction to hear challenges to Mr. Fay’s 1981
federal convictions.
Petitioner’s bald assertion of jurisdiction under the All Writs
Act has also previously been rejected.

See Fay v. United States of

America, 389 Fed.Appx. at 803 (affirming dismissal of Fay’s action
for mandamus relief in D.Kan. Case No. 10-3015).
Petitioner also seeks again to challenge the actions and
authority of the U.S. Parole Commission.

His claim that he was

improperly found guilty of having violated parole based upon charges
that were dismissed in state criminal proceedings has no legal merit.
It is well-settled that parole may be properly revoked for violating
4

conditions, even if criminal charges based upon the same events are
dismissed in criminal proceedings, as long as a factual basis for
the violation was found during revocation proceedings.

Petitioner

does not show that he is being held on a “sentence” imposed by the
Commission rather than that imposed in the South Dakota federal
court.

A

parole

violator

term

is

not

a

new

sentence.

Petitioner’s claims regarding his revocation proceedings are not
supported by sufficient factual allegations to show a federal
constitutional violation.

In any event, they are also second and

successive claims because Mr. Fay has unsuccessfully challenged the
Commission’s acts and authority in prior § 2241 actions.

The court

finds that this is a successive § 2241 habeas corpus application that
is barred by 28 U.S.C. §§ 2244(a) and (b)(1).

Any new claim included

in a successive petition is likewise generally barred.

See 28 U.S.C.

§ 2244(b)(2); McCleskey v. Zant, 499 U.S. 467, 489 (1991); Lambros
v. Booker, 216 F.3d 1087 (10th Cir. 2000)(Table)(“[A] second or
subsequent § 2241 petition which raises a new claim, which could have
been raised in an earlier petition, should be dismissed as abusive
under § 2244(a), absent a showing of either cause and prejudice or
a fundamental miscarriage of justice.”).

Thus, these claims are

dismissed as successive and abusive as well as for failure to state
a claim.
IT IS THEREFORE ORDERED that this action is dismissed as
successive and abusive and for lack of jurisdiction.
5

IT IS FURTHER ORDERED that petitioner’s Motion to Proceed in
forma pauperis (Doc. 2) is granted.
IT IS FURTHER ORDERED that the court hereby certifies that any
appeal of this matter would not be taken in good faith.
IT IS SO ORDERED.
DATED:

This 11th day of February, 2015, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

6