Ciszkowski v. Holland
Filing
6
MEMORANDUM OPINION & ORDER: 1. Ciszkowski's petition for a writ of habeas corpus [R. 1 is DENIED. 2. The Court will enter a judgment contemporaneously with this order. 3. This matter is STRICKEN from the docket. Signed by Judge Karen K. Caldwell on 09/17/2013.(MRS)cc: COR, Pro Se Filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
WOJTEK CISZKOWSKI,
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Petitioner,
V.
J. C. HOLLAND, Warden,
Respondent.
Civil No. 6: 13-91-KKC
MEMORANDUM OPINION
AND ORDER
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Wojtek Ciszkowski is a prisoner confined at the United States Penitentiary - McCreary in
Pine Knot, Kentucky. Proceeding without an attorney, Ciszkowski has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 challenging his conviction for possessing a firearm in
furtherance of a crime of violence. [R. 1]
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). The Court must
deny the petition “if it plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United States District
Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Ciszkowski’s
petition under a more lenient standard because he is not represented by an attorney. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage,
the Court accepts the petitioner’s factual allegations as true, and his legal claims are liberally
construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
I
On January 20, 2006, a jury in the Middle District of Florida found Ciszkowski guilty of
using a facility of interstate commerce in furtherance of a plan to commit murder for hire in violation
of 18 U.S.C. § 1958; possession with intent to distribute ecstacy in violation of 21 U.S.C. § 841; and
possession of a firearm in furtherance of a drug trafficking crime and a crime of violence in violation
of 18 U.S.C. § 924(c). On May 2, 2006, the trial court sentenced Ciszkowski to concurrent 12month terms of incarceration on the first two counts, and a consecutive 360-month term of
incarceration on the firearms count because the weapon was equipped with a silencer. United States
v. Ciszkowski, No. 8:05-cr-36-SDM-TBM (M.D. Fla. 2005); see also United States v. Ciszkowski,
430 F. Supp. 2d 1283 (M.D. Fla. 2006).
On direct appeal, Ciszkowski argued that the government “set him up” by including a
silencer on the murder weapon provided by the government’s confidential informant; that he did not
know that the weapon - contained within a duffel bag - was equipped with a silencer; that the court
failed to instruct the jury that it must find beyond a reasonable doubt that he knew the weapon was
equipped with a silencer; and that his sentence was unreasonable. The Eleventh Circuit rejected each
of his arguments and affirmed his conviction and sentence. United States v. Ciszkowski, 492 F.3d
1264 (11th Cir. 2007). On September 3, 2008, the trial court denied Ciszkowski’s timely § 2255
motion to vacate his conviction and sentence because his motion asserted the same claims considered
and rejected by the Eleventh Circuit on direct appeal. Ciszkowski v. United States, No. 8:08-cv1364-SDM-TBM (M.D. Fla. 2008).
In his petition, Ciszkowski contends that his conviction under § 924(c) for possessing a
firearm in furtherance of a drug trafficking crime and a crime of violence violates the Double
Jeopardy Clause of the Fifth Amendment. This is so, Ciszkowski argues, because his conviction for
this offense arose out of the same “identical” conduct which formed the basis for his convictions for
using a facility of interstate commerce in furtherance of a plan to commit murder for hire and for
possession with intent to distribute ecstacy. [R. 1, pp. 12, 14-16]
II
As a threshold matter, Ciszkowski may not pursue his Double Jeopardy claims in a § 2241
petition. To challenge the legality of a federal conviction or sentence, a prisoner must file a motion
for post-conviction relief under 28 U.S.C. § 2255 in the court that convicted and sentenced him.
Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). The prisoner may not use a habeas corpus
petition pursuant to 28 U.S.C. § 2241 for this purpose, as it does not constitute an additional or
alternative remedy to the one available under § 2255. Hernandez v. Lamanna, 16 F. App’x 317, 320
(6th Cir. 2001).
Under highly exceptional circumstances, the “savings clause” found in 28 U.S.C. § 2255(e)
will permit a prisoner to challenge the validity of his conviction in a habeas corpus proceeding under
§ 2241, but only where the remedy afforded by § 2255(a) “is inadequate or ineffective” to test the
legality of his detention. Truss v. Davis, 115 F. App’x 772, 773-74 (6th Cir. 2004). This standard
is not satisfied merely because the prisoner’s time to file a § 2255 motion has passed; he did not file
a § 2255 motion; or he did file such a motion and was denied relief. Copeland v. Hemingway, 36
F. App’x 793, 795 (6th Cir. 2002); Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (§ 2241
available “only when a structural problem in § 2255 forecloses even one round of effective collateral
review ...”).
Instead, the prisoner must be asserting a claim of “actual innocence.” Such a claim can arise
only where, after the prisoner’s conviction became final, the Supreme Court re-interprets the
substantive terms of the criminal statute under which he was convicted in a manner that establishes
that his conduct did not violate the statute. Hayes v. Holland, 473 F. App’x 501, 501-02 (6th Cir.
2012) (“To date, the savings clause has only been applied to claims of actual innocence based upon
Supreme Court decisions announcing new rules of statutory construction unavailable for attack under
section 2255.”); United States v. Prevatte, 300 F.3d 792, 800-801 (7th Cir. 2002); Eiland v. Rios,
No. 7:07-cv-83-GFVT (E.D. Ky. May 3, 2007), aff’d, No. 07-5735 (6th Cir. Nov. 28, 2007) (same).
Here, Ciszkowski’s Double Jeopardy claims could and should have been asserted on direct
appeal or in his initial motion for relief under § 2255. Barton v. Wilson, No. 10-349-HRW, 2012
WL 1634013, at *4 (E.D. Ky. May 8, 2012). Even if his claims had merit, they did not result in him
being convicted of conduct “that the law does not make criminal” in light of a Supreme Court
decision handed down after his direct appeal or first collateral attack on his conviction. Bousley v.
United States, 523 U.S. 614, 620 (1998). The Court must therefore deny Ciszkowski’s petition
because he may not assert his claims in a habeas corpus proceeding under § 2241.
Even if this were not so, Ciszkowski’s Double Jeopardy claim is substantively meritless. The
Double Jeopardy Clause of the Fifth Amendment bars any person “subject for the same offence to
be twice put in jeopardy of life or limb.” Ordinarily, the Double Jeopardy Clause is not violated if
“each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284
U.S. 299, 304 (1932). However, the Blockburger test does not apply where Congress clearly
expressed its intent that the statute is intended to enhance the sentence for other violent or drug
trafficking offenses. Where, as here “statutory intent clearly indicates that Congress authorized
multiple punishments based on committing a crime in a particular manner, here using a firearm, the
resulting sentences do not violate the double jeopardy clause.” United States v. Gibbons, 994 F.3d
299, 302 (6th Cir. 1993) (citing Albernaz v. United States, 450 U.S. 333, 344 (1981)); see also
United States v. Kennedy, 682 F. 3d 284, 257 (3d Cir. 2012); United States v. Howell, 199 F. App’x
697, 702-03 (10th Cir. 2006).
In addition, Ciszkowski’s reliance upon Busic v. United States, 446 U.S. 398 (1980) and
Simpson v. United States, 435 U.S. 6 (1978), is misplaced. In 1984, Congress legislatively overruled
the results in those cases when it amended § 924(c) to clarify that a conviction under that statute was
authorized even when the underlying offense already contained an enhancement provision of its own.
United States v. Garrett, 903 F.3d 1105, 1115 n. 12 (7th Cir. 1990).
Accordingly, IT IS ORDERED that:
1.
Ciszkowski’s petition for a writ of habeas corpus [R. 1] is DENIED.
2.
The Court will enter a judgment contemporaneously with this order.
3.
This matter is STRICKEN from the docket.
This the 17th day of September, 2013.
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