Schmutzler v. Grondolsky

Filing 7

Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER(PSSA, 5)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JEFFREY SCHMUTZLER,
Petitioner,
v.
WARDEN JEFF GRONDOLSKY
Defendants.

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C.A. No. 17-10911-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
Before the Court is Jeffrey Schmutzler’s third petition in this district (and the second before
this Court) for a writ of habeas corpus under 28 U.S.C. § 2241 (ECF No. 1) and Petitioner’s Motion
for Appointment of Counsel (ECF No. 2). The petition has not been served pending the Court’s
review of the petition. See 28 U.S.C. § 2243 (if “it appears from the application [for a writ of
habeas corpus] that the applicant . . . is not entitled [to the writ],” the district court is not required
to order the respondent “to show cause why the writ [of habeas corpus] should not be granted”).
For the reasons stated below, the Court DENIES the petition. In light of the Court’s denial of the
petition, the motion for appointment counsel (ECF No. 2) is DENIED as moot.
I.

Background
On July 29, 2013, Jeffrey Schmutzler pleaded guilty in the United States District Court for

the Middle District of Pennsylvania to one count of knowingly receiving child pornography
pursuant to 18 U.S.C. 2252A(a)(2). 1 United States v. Schmutzler, 602 Fed. App’x. 871, 872 (3rd

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At sentencing, the United States presented uncontested evidence that Schmutzler, a school
teacher, “possessed 1,424 child pornography images in which he had photoshopped the faces of
136 current students.” United States v. Schmutzler, 602 Fed. App’x. 871, 872–73 (3rd Cir.
2015). “The United States also presented evidence that Schmutzler possessed between two and
four terabytes of child pornography, amounting to between four and eight million images.” Id. at
873.

Cir. 2015); United States v. Schmutzler, No. 1:13-CR-00065, 2015 WL 1912608, at *1 (M.D. Pa.
Apr. 27, 2015). Schmutzler was sentenced to 108 months. Id. He is currently serving his sentence
at FMC Devens in Ayer, Massachusetts. On February 23, 2015, Schmutzler’s conviction was
affirmed. United States v. Schmutzler, 602 Fed. Appx. 871 (3rd Cir. 2015).
On November 21, 2016, Schmutzler filed a motion for relief from the order on his § 2255
proceeding before the sentencing court in the Middle District of Pennsylvania. Schmutzler claimed
that his case should have been dismissed because of principles of federalism and related
jurisdictional claims relating to the statute under which he was convicted. On March 9, 2017, the
motion was denied as an unapproved second or successive 28 U.S.C. § 2255 petition. United States
v. Schmutzler, No. 1:CR-13-0065, 2017 WL 930455, at *3 (M.D. Pa. Mar. 9, 2017). That court
held:
Defendant no longer simply argues that federal authorities should
have deferred to state ones, but asserts that the federal statute does
not reach his conduct, and phrasing the argument in terms of
jurisdiction. Under Gonzalez, this makes Defendant’s motion a 2255
one. Since Defendant has already had a 2255 motion adjudicated, as
we noted above, we lack jurisdiction to consider his current one.
Defendant is free to seek a certificate of appealability from the Third
Circuit if he wishes to pursue the claim.
United States v. Schmutzler, No. 1:CR-13-0065, 2017 WL 930455, at *2 (M.D. Pa. Mar. 9, 2017).
Schmutzler did not seek leave to file a second or successive 28 U.S.C. § 2255 petition from
the Third Circuit under § 2255(h). Rather, on March 24, 2017, Schmutzler filed an “emergency”
petition for mandamus from the Third Circuit Court of Appeals, again, raising the same substantive
arguments. On May 1, 2017, the Third Circuit denied Schmutzler’s petition for relief, holding:
Schmutzler raises claims that could have been presented in prior
appeals; thus, he is not entitled to mandamus relief…Further a
§2255 motion filed in the sentencing court is the presumptive means
for a federal prisoner to challenge the validity of a conviction or
sentence…If Schmutzler wishes to collaterally challenge his
conviction or sentence by filing a second §2255 motion, he must
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once again comply with the gatekeeping requirements prescribed by
28 U.S.C. §2244 and §2255(h). He may not use a mandamus petition
to evade these requirements.
In re Schmutzler, No. 17-1658, 2017 WL 1546140, at *2 (3d Cir. May 1, 2017).
Schmutzler still did not, however, seek authorization to file a second and successive
petition under § 2255(h) from the Third Circuit. Rather, on May 8, 2017, Schmutzler filed a
currently-pending motion to reopen his § 2255 proceedings because of purported ineffective
assistance of counsel for failing to raise his federalism/jurisdictional claims. United States v.
Schmutzler, No. 1:13-CR-00065, M.D. Pa., ECF No. 121.
Ten days later, on May 18, 2017, rather than waiting for a decision on that motion,
Schmutzler filed his third petition for relief pursuant to 28 U.S.C. § 2241 in this Court, invoking
the savings clause of 28 U.S.C. § 2255(e). Schmutzler makes the same argument here that he is
making in his currently-pending motion before the sentencing court in the Middle District of
Pennsylvania.
II.

Discussion
As petitioner is well aware, under 28 U.S.C. § 2255, a federal prisoner who claims that

his “sentence was imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).
He may not challenge the legality of his sentence through writ of habeas corpus, under the
savings clause, unless it appears that a § 2255 motion is “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e). At this stage, both the United States District
Court for the Middle District of Pennsylvania and the Third Circuit Court of Appeals have

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recently informed Schmutzler that (1) the federalism/jurisdictional claims are in the nature of
§ 2255 relief, and (2) his recourse is to seek a second or successive petition under 28 U.S.C.
§ 2255(h). Schmutzler apparently presumes that an application under § 2255(h) would be
unsuccessful, so he has instead filed a motion to re-open his § 2255 proceedings in the Middle
District of Pennsylvania under the same ineffective assistance of counsel argument raised here.
Because there is a prior-pending motion to re-open his § 2255 proceedings, Schmutzler cannot
demonstrate that his remedy under § 2255 is “inadequate or ineffective” under § 2255(e). Fusco
v. Grondolsky, No. CV 16-30178-TSH, 2016 WL 7477750, at *3 (D. Mass. Dec. 28,
2016)(dismissing § 2241 petition under § 2255(e) where prior pending § 2255 petition raised
almost identical claims). Therefore, pursuant to 28 U.S.C. § 2255(e), the 28 U.S.C. § 2241
petition may not be entertained by this Court and must be dismissed.
III.

Conclusion
For the reasons stated herein, the petition (ECF No. 1) is DENIED pursuant to 28 U.S.C.

§ 2255(e), and the action is DISMISSED. In light of the Court’s denial of the petition and
dismissal, Petitioner’s Motion for Counsel is DENIED as MOOT.
So Ordered.
__/s/ Allison D. Burroughs___
Allison D. Burroughs
United States District Judge

Dated: May 24, 2017

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