Luedtke v. Berkebile

Filing 14

MEMORANDUM OPINION & ORDER: (1) James D. Luedtke's 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus, (D. E. No. 2 ), is DENIED; (2) Luedtke's "Motion to Amend/Correct Petition," (D. E. No. 12 ), is DENIED; ( 3) Luedtke's "Motion for Appointment of Counsel," (D. E. No. 3 ), and his Motion for Order," (D. E. No. 7 ), are DENIED as MOOT; (4) This action is DISMISSED, sua sponte, with prejudice; and (5) Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of David Berkebile, Warden of USP-Big Sandy. Signed by Judge Henry R. Wilhoit, Jr on 1/3/2012. (TDA)cc: James D. Luedtke

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
JAMES D. LUEDTKE,

Petitioner,

No.7:11-CV-00080-HRW

v.

MEMORANDUM OPINION
RICHARD IYES, Warden,

AND ORDER

Respondent.

***** ***** ***** *****
James D. Luedtke, confined in the United States Penitentiary-Big Sandy ("USP-Big
Sandy") located in Inez, Kentucky, has filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [D. E. No. 2V He has also filed a motion seeking the
appointment ofcounsel, [D.E. No.3], amotion seeking an Order, [D. E. No.7], and amotion
amend his § 2241 petition, [D. E. No. 12].
As Luedtke has paid the $5.00 filing fee, the Court screens his petition pursuant to 28
U.S.C. § 2243. At the screening phase, the Court must dismiss any petition that "is frivolous,
or obviously lacking in merit, or where ... the necessary facts can be determined from the
petition itself without need for consideration ofa return." Allen v. Perini, 424 F .2d 134, 141
(6th Cir. 1970) (citations omitted).2

D. Berkebile is no longer the Warden of USP-McCreary. The new Warden of USP­
McCreary is Richard rves. The Clerk will be instructed to note the substitution of party.
2

The Court holds pro se pleadings to less stringent standards than those drafted by attorneys.

Because Luedtke has not demonstrated that his remedy in the federal court where he
was sentenced was inadequate and ineffective to challenge his federal conviction and
sentence, or that he is actually innocent of the federal offenses of which he was convicted,
his § 2241 petition will be denied, all pending motions will be denied, and this proceeding
will be dismissed.

CONVICTION AND PRIOR COLLATERAL CHALLENGES
In 2003, a federal jury in Wisconsin found Luedtke guilty ofarmed bank robbery, use
of a firearm in a crime of violence, felon in possession of a firearm, and aiding and abetting
the making of false statements to obtain a firearm relating to the armed robbery of the
Premier Community Bank in lola, Wisconsin on December 13,2002. 3 See United States v.

Luedtke, No. 03-CR-37 (E. D. Wis.) ("the Trial Court").

On January 16,2004, the Trial

Court sentenced Luedtke to a prison term of 444 months (37 years) and ordered him to pay
restitution of$12,377. On appeal, Luedtke argued that the Trial Court erred in denying his
motion to suppress evidence obtained as a result ofa search ofthe apartment in which he was
staying. The United States Court ofAppeals rejected that claim and affirmed the conviction
in an unpublished order. United States v. Luedtke, 125 F. App'x 732 (7th Cir. 2005). The

Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir.
1999). During screening, the Court accepts as true a pro se litigant's allegations and liberally
construes them in his favor. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001).
3

Specifically, Luedtke was charged with violating the following federal statutes: 18 U.S.C.
§§ 2113(a) and (d), 924(c), 922(g)(1) and 926(a)(6) and (2).
2

Seventh Circuit held that because Jason Hi1lestad, the lessor of the searched apartment, had
actual authority to consent to a search of the entire apartment, including a bedroom which
Luedtke had occupied, no basis existed for suppressing and the evidence seized from the
apartment. [Id., at 736V
On May 2,2005, Luedtke filed a 28 U.S.C. § 2255 motion in the Trial Court to vacate
his sentence. Luedtke v. United States, No. 05-C-0489 (E. D. Wis.). Luedtke again
challenged the search of the apartment where he was living prior to his arrest. During that
search, the police found money stolen from the bank that had been robbed, pieces of the
disguise worn by the perpetrator, and guns.
In his § 2255 motion, Luedtke argued that: (1) he was denied a fair trial because he
was unable to call necessary witnesses, (2) the jury was improperly informed he was on
parole at the time of the search, (3) the government was allowed to call a witness not
previously disclosed, (4) witnesses were allowed to maintain confidentiality concerning their
current addresses, (5) irrelevant evidence was admitted, (6) the trial judge was biased, (7) the
police tampered with andlor planted evidence, (8) he was denied his right to the effective

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Luedtke had moved the Trial Court to suppress the evidence seized from the apartment he
shared with Jason Hillestad, arguing that the initial warrant-less search by parole and probation
agents was illegal because he (Luedtke) was no longer on parole, and that the warrant obtained later
was thus tainted and invalid. A Magistrate Judge disagreed, declined the request for an evidentiary
hearing, and recommended that the Trial Court deny the motion to suppress.
At the conclusion of the hearing, the Trial Court denied Luedtke's suppression motion,
finding that because Luedtke was on parole at the time ofthe search, no search warrant was required.
Further, the Trial Court determined that because Hillestad, the lessee, gave the authorities valid
consent for the search, the warrant which the police obtained was therefore valid.
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assistance of counsel both at trial and on appeal, (9) the jury included no minorities and was
prejudiced against him (even though Luedtke is white), (10) he was denied his right to a
speedy trial, (11) the discovery provided was censored and inadequate, (12) he was sentenced
under a faulty sentencing scheme, and (13) the United States Court of Appeals for the
Seventh Circuit was biased and denied him due process in aftirming his conviction.
On May 23, 2005, the Trial Court denied Luedtke's § 2255 motion, summarily
dismissing of all ofhis claims challenging the entry and search ofthe apartment in which the
guns were found. The Trial Court stated that:
The plain fact is that Luedtke has already fully litigated his Fourth Amendment
claim on appeal. He cannot simply continue to raise it after it has been clearly
rejected. United States v. Taglia, 922 F.2d 4l3, 418 (7th Cir. 1991). The
Seventh Circuit
thoroughly discussed and rejected
Luedtke's claim that the evidence
seized from the apartment should
have been suppressed. Having
found that the initial consent by
Hillestad was valid, the Seventh
Circuit had no need to address the
question of whether Luedtke was
still on parole at the time of the
search. It is simply not relevant,
given the finding of consent for the
entry.

Luedtke's Fourth Amendment claim... has been decided and fully reviewed.
Luedtke is not entitled to further review now."

Luedtke, 2005 WL 1229686 at *3.
The Trial Court further determined that Luedtke's conclusory allegations of police

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misconduct, witness unavailability, and bias and prejudice of the Trial Court, jury, and the
Court ofAppeals, failed to state claims upon which § 2255 relief could be granted. The Trial
Court stated as follows:
His claim of ineffective assistance of appellate counsel lacks any specificity,
as does his claim that the identification procedure was unduly suggestive. I
note that the question of identification was never raised in the trial court and
thus would be considered waived. And the fact that he was on parole at the
time of the search was admitted into evidence only after and because Luedtke
had opened the door to that evidence by repeatedly suggesting the police had
failed to follow proper procedure in conducting their initial search, despite the
fact that it was parole agents, not police who conducted the initial search. In
light ofthe overwhelming evidence against him, it would provide no basis for
relief in any event.

Id., at *4.5
Luedtke appealed. The Seventh Circuit construed the appeal as a motion for a
certificate of appealability and denied the motion, finding no substantial showing of the
denial ofa constitutional right under 28 U.S.C. § 2253(c)(2). Luedtke v. United States, No.
05-2905 (7th Cir. March 10, 2006).
Later that year, the Trial Court denied Luedtke's motion to vacate the restitution
portion of his criminal judgment. Luedtke v. United States v. Luedtke, No. 03-CR-37, 2006
WL 2988470 (E.D. Wis., October 16,2006). The Trial Court determined that Luedtke failed
to challenge the restitution order in his direct appeal; that relief under § 2255 is not available

On June 28,2005, the Trial Court denied Luedtke a certificate of appealability.
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to challenge a restitution order imposed as part of a criminal sentence; and that the record
fully supported the restitution portion of the judgment. [Id., at * 1].
CLAIMS ASSERTED IN THE § 2241 PETITION

Luedtke challenges his conviction on fifteen (15) grounds: (1) the Trial Court and
Seventh Circuit Court of Appeals denied him due process of law by summarily denying his

§ 2255 motion and appeal, respectively; (2) he was denied a parole revocation hearing; (3)
police violated his Fourth Amendment rights by ignoring the "knock and announce"
procedure required by 18 U.S.C. § 3109; (4) the police engaged in misconduct and violated
his Fourth Amendment rights by performing an "unlawful exploratory" search of his
residence without a warrant, and obtained a warrant after only they found items of "possible
evidence;" (5) the police fabricated a confession from him; (6) the police illegally searched
and seized a 1994 Chevy truck that was not listed on the search warrant; (7) the evidence
used to convict him was insufficient because Jason Hillestad, the owner of the searched
premises, is a "psychopath;" (8) minorities were excluded from the jury; (9) minorities were
excluded from the grand jury; (10) the prosecutor engaged in various forms of misconduct,
i. e., allowing witnesses to give false testimony, submitting inadmissible evidence, providing

him with censored discovery documents, and misleading the court and jury; (11) the Trial
Court committed various errors, i. e., allowing the jury to be told he was on state parole at the
time of the offense when he was not; admitting improper and inflammatory into evidence;
allowing Jason Hillestad's criminal history to be concealed from the jury; and denying him

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(Luedtke) the right to call certain police witnesses at trial; (12) he was provided ineffective
assistance of counsel at trial; (13) his pro se representation of himself was ineffective
because (a) he lacked the resources (i.e., law library, writing instruments, and tables on which
to write) necessary to properly defend himself, and (b) his decision to represent himselfwas
not knowing, intelligent, or voluntary; (14) he received ineffective assistance of counsel on
appeal; and (15) all of the proceedings in which he has been involved were fundamentally
unfair; he was unlawfully convicted; his appeals were summarily dismissed, and he is
actually innocent of the crimes of which he was convicted. [D.E. No.2, pp. 2-12].
Luedtke has also filed a motion seeking the appointment of counsel, arguing that he
is unable to adequately represent himself in this action. [D.

No.3].

DISCUSSION
1. 28 U.S.C. § 2255 Remedy Was Not Inadequate or Ineffective
Luedtke is not entitled to relief under § 2241 because he fails to show that his remedy

in the Trial Court under 28 U.S.C. § 2255 was inadequate or ineffective to challenge the
legality of his detention. Section 2255 provides the primary avenue of relief for federal
prisoners claiming the right to release as a result of an unlawful sentence. Terrell v. United

States, 564 F.3d 442, 447 (6th Cir. 2009) (citing 28 U.S.C. § 2255(a)). It is the mechanism
for collaterally challenging errors that occurred "at or prior to sentencing." Eaves v. United

7

States, No.4:10-cv-00036, 2010 WL at 3283018 at * 6 (E.D. Tenn., August 17, 20 1O)(citing
Packv. Yust@, 218 F.3d 448,451 (5th Cir. 2000)).
This rule has one exception: the "savings clause" of § 2255 permits relief under §
2241 if § 2255 is "inadequate or ineffective to test the legality ofthe detention." Terrell, 564
F.3d at 447 (quoting Witham v. United States, 355 F.3d 501, 505 (6th Cir. 2004)); see 28
U.S.C. § 2255(e). A federal prisoner may not challenge his conviction and sentence under

§ 2241 "if it appears that the applicant has failed to apply for relief, by [§ 2255] motion, to
the court which sentenced him, or that such court has denied relief." See 28 U.S.C. §
2255(e). He must prove that his § 2255 remedy is inadequate or ineffective to challenge the
legality ofhis detention. Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999); Martin v. Perez,
319 F.3d 799 (6th Cir. 2003). Relief under § 2241 is available only to the rare habeas
petitioner who can show that his § 2255 remedy was truly "inadequate and ineffective."

United States v. Peterman, 249 F.3d 458,461 (6th Cir. 2001).
Luedtke cannot make this showing. Luedtke asserts numerous arguments which he
unsuccessfully raised both in his direct appeal and in his § 2255 motion, i.e., Fourth
Amendment claims challenging the circumstances ofhis arrest and the search ofthe premises
he leased from Jason Hillestad (Claim No.4); Fifth Amendment due process claims
challenging both the fairness of Trial Court's rulings regarding witnesses and evidence and
the appeal process; the denial ofhis § 2255 motion and the Seventh Circuit's summary denial
of his appeal of that motion (Claim Nos. 1, 7,8,9, 10, 11, and 15), and Sixth Amendment

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claims challenging the effectiveness of both his trial and appellate counsel, (Claim Nos. 12
and 15).
Luedtke now raises five other constitutional claims which he does not appear to have
specifically raised in his § 2255 motion. These claims are that he was denied a parole
revocation hearing in violation of the Fifth Amendment, (Claim No. 2);6 that the police
violated his Fourth Amendment rights by ignoring the "knock and announce" procedure
required by 18 U.S.C. § 3109, (Claim No.3), by fabricating a confession from him, (Claim
No.5), and by illegally searching and seizing a 1994 Chevy truck not listed on the search
warrant, (Claim No.6); and that his pro se representation of himself was involuntary and
violated the Sixth Amendment because the Trial Court knew, or should have known, that he
was incompetent to represent himself and that he lacked the legal resources to defend
himself, (Claim No. 13).
Luedtke either knew, or should have known, about these Fourth, Fifth, and Sixth
Amendment claims/alleged deficiencies when he filed his direct appeal of his conviction,
and/or when he filed his §2255 motion in the Trial Court on May 2,2005. None of these
constitutional claims involve new facts of which Luedtke would have been unaware either
when he appealed his conviction to the Seventh Circuit or when he filed his § 2255 motion

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As noted, in denying Luedtke's § 2255 motion, the Trial Court noted the Seventh Circuit's
opinion that Jason Hillestad gave authorities valid consent to search Luedtke's room, and concluded
that it was unnecessary to consider whether Luedtke was still on parole at the time ofthe search. See
Luedtke, 2005 WL 1229686 at *3.

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in the Trial Court. Simply put, these alleged errors occurred "at or prior to sentencing."

Eaves, 2010 WL at 3283018 at

* 6.

A federal prisoner may not invoke the savings clause of § 2255, and thereby obtain
relief under § 2241, where he failed to seize an earlier opportunity to correct a fundamental
defect in his conviction under pre-existing law, or asserted that claim in a prior post­
conviction motion under § 2255 but was denied relief. Charles v. Chandler, 180 F.3d 753,
756 (6th Cir. 1999); United States v. Prevatte, 300 F.3d 792,800 (7th Cir. 2002). Section §
2255 is not inadequate just because a petitioner has already exhausted his direct appeal and
§ 2255 options. Graham v. Sanders, 77 F. App'x 799, 801 (6th Cir. 2003). The fact that
Luedtke was denied reliefunder § 2255, and that the Seventh Circuit denied him a certificate
of appealability, did not render his § 2255 remedy inadequate or ineffective to challenge his
detention. Charles, 180 F.3d at 756. Thus, none ofLuedtke's claims, old or new, implicate
either the savings clause of § 2255 or the provisions of § 2241.
2. No Showing of Actual Innocence
The only other circumstance under which § 2241 can be invoked through the savings
clause of § 2255 arises when the movant alleges "actual innocence." Bannerman v. Snyder,
325 F.3d 722, 724 (6th Cir. 2003); Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir.
2003). Actual innocence requires "factual innocence, not mere legal insufficiency." Bousley
v. United States, 523 U.S. at 623-24; Hilliard v. United States, 157 F.3d 444, 450 (6th Cir.

1998); Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th Cir. 2001). The movant

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must show that "a constitutional violation has probably resulted in the conviction ofone who
is actually innocent of the crime." Murray v. Carrier, 477 U.S. 478,496 (1986).
Luedtke does not allege that after he was convicted, new facts or evidence surfaced
suggesting that he is actually innocent ofthe bank robbery, firearm, and related offenses, of
which he was convicted. In his § 2241 petition, Luedtke continues to assert claims of legal
insufficiency, i.e., Fourth, Fifth, And Sixth Amendment claims challenging the search ofhis
leased premises, the rulings made at trial and on appeal, and the effectiveness of his trial and
appellate counsel, but as noted, these are claims which he either unsuccessfully raised, or
could have raised, on direct appeal and in his § 2255 motion.
Luedtke also fails to show that after his conviction became final, the Supreme Court
rendered a retroactively applicable decision determining that the conduct of which he
convicted (possession of crack cocaine) was no longer criminal. See Bousley, 523 U.S. at

620; Enigwe v. Bezy, 92 F. App'x 315, 317 (6th Cir. 2004) ("Although this court has not
determined the exact scope of the savings clause, it appears that a prisoner must show an
intervening change in the law that establishes his actual innocense in order to obtain the
benefit of the savings clause."); Copeland v. Hemingway, 36 F. App'x 793, 795 (6th Cir.
2002) (same). As Luedtke makes no such claim, he does not assert a claim of actual
innocence. Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003).
Luedtke's § 2255 remedy was not inadequate or ineffective to challenge his
conviction, and he has not shown that he is actually innocent of the federal bank robbery,

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firearm, and related offenses of which he was convicted. Because the savings clause of §
2255 does not apply, Luedtke's § 2241 petition will be denied.
3. Motion to Amend § 2241 Petition
On November 14, 2011, Luedtke filed a motion seeking permission to amend his §
2241 petition to assert, on his and other inmates' behalf, Eighth Amendment claims alleging
overcrowding at USP-McCreary. [D. E. No. 12]. The motion will be denied because
Luedtke can not challenge the conditions of his confinement in § 2241 habeas petition. See

Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004); Sullivan v. United States, 90 F. App'x
862, 863 (6th Cir. 2004).
Such claims can only be asserted claims in a civil rights action filed under 28 U.S.C.

§ 1331, pursuant to Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics,
403 U.S. 388 (1971), the filing fee for which is $350.00, even if the prisoner qualifies for
pauper status. Prior to filing a Bivens action asserting any conditions ofconfinement claims,
Luedtke must fully complete the Bureau ofPrisons ' three-step administrative remedy process
set forth in 28 C.F.R. §§ 542.10-19.
Further, in the event Luedtke files a Bivens action alleging overcrowding at USP-Big
Sandy, he may assert such a claim only on his own behalf, not on behalf of other prisoners.

Newsom v. Norris, 888 F.2d 371, 381 (6th Cir. 1989). Constitutional claims are personal and
cannot be asserted vicariously by a third party. County Court ofUlster County v. Allen, 442
U.S. 140, 154-55 (1979). Luedtke "lacks standing to assert the constitutional rights ofother

12

prisoners." [Id.]. Pro se prisoners generally may not bring class action lawsuits concerning
prison conditions. Dean v. Blanchard, 865 F .2d 257, 1988 WL 130851, at *1 (6th Cir. 1988)
(Table) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)). Because
Luedtke's § 2241 petition and his motion to amend will be denied, his motion to appoint
counsel and his motion seeking an Order will also be denied, as moot.
CONCLUSION

Accordingly, the Court being advised, IT IS ORDERED as follows:
(1)

James D. Luedtke's 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus,

[D. E. No.2], is DENIED;
(2)

Luedtke's "Motion to Amend/Correct Petition," [D. E. No. 12], is

DENIED;

(3)

Luedtke's "Motion for Appointment of Counsel," [D. E. No.3], and

his Motion for Order," [D.

No.7], are DENIED as MOOT;

(4)

This action is DISMISSED, sua sponte, with prejudice; and

(5)

Judgment shall be entered contemporaneously with this Memorandum

Opinion and Order in favor of David Berkebile, Warden ofUSP-Big Sandy.
This the 3rd day of January, 2012.

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