Hach v. Fischer

Filing 2

REPORT AND RECOMMENDATION that: Petitioner's application for habeas corpus relief under 28 U.S.C. 2241, (Docket No. 1), be DISMISSED for lack of jurisdiction. Objections to R&R due by 6/24/2009. Signed by Magistrate Judge Jeanne J. Graham on 6/9/09. (jam)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA CARL J. HACH, Civil No. 09-1340 (JRT/JJG) Petitioner, v. SCOTT FISCHER, Warden at FCI-Sandstone, Respondent. This matter is before the undersigned United States Magistrate Judge on Petitioner=s application for habeas corpus relief under 28 U.S.C. ' 2241. The case has been referred to this Court for report and recommendation pursuant to 28 U.S.C. ' 636 and Local Rule 72.1. For the reasons discussed below, it is recommended that the petition for writ of habeas corpus be summarily dismissed pursuant to Rule 4 of The Rules Governing Section 2254 Cases In The United States District Courts.1 I. BACKGROUND In 1998, Petitioner pled guilty to violating federal drug laws in a criminal case brought against him in the United States District Court for the Western District of
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REPORT AND RECOMMENDATION

Rule 4 provides that A[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.@ Although The Rules Governing Section 2254 Cases are most directly applicable to habeas petitions filed by state prisoners pursuant to 28 U.S.C. ' 2254, they also may be applied to habeas cases brought under 28 U.S.C. ' 2241. Rule 1(b); Mickelson v. United States, Civil No. 01-1750 (JRT/SRN), (D.Minn. 2002), 2002 WL 31045849 at *2; Bostic v. Carlson, 884 F.2d 1267, 1270, n.1, (9th Cir. 1989); Rothstein v. Pavlick, No. 90 C 5558 (N.D.Ill. 1990), 1990 WL 171789 at *3.

Wisconsin. He was sentenced to 188 months in federal prison, to be followed by five years of supervised release. Petitioner is currently serving his prison term at the Federal Correctional Institution in Sandstone, Minnesota. (Petition, [Docket No. 1], pp. 1-2.) After Petitioner was convicted and sentenced, he filed a direct appeal challenging the propriety of his sentence. The Seventh Circuit Court of Appeals affirmed Petitioner=s sentence, and the U.S. Supreme Court denied his subsequent petition for a writ of certiorari. United States v. Hach, 162 F.3d 937 (7th Cir. 1998), cert. denied, 526 U.S. 1103 (1999). Petitioner later filed a motion in the trial court pursuant to 28 U.S.C. ' 2255. Petitioner=s ' 2255 motion challenged the validity of his sentence, based on an argument concerning the quantity of the drugs involved in his offense. The trial court denied the ' 2255 motion without a hearing, and Petitioner=s subsequent attempt to appeal that ruling was unsuccessful. (Petition, p. 2.) Petitioner=s current habeas corpus petition, which was filed on June 2, 2009, presents a new challenge to his 1998 federal criminal conviction in the Western District of Wisconsin. Petitioner now contends that the trial court lacked jurisdiction over his criminal case, because his offense allegedly occurred on private property B not federally owned property. The Court finds, however, that Petitioner=s current challenges to his 1998 federal criminal conviction and sentence cannot be brought in a ' 2241 habeas corpus petition, for the reasons discussed below.

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II.

DISCUSSION As a general rule, a federal prisoner can maintain a collateral challenge to his

conviction or sentence only by filing a motion in the trial court pursuant to 28 U.S.C. ' 2255. Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir. 2004), cert. denied, 545 U.S. 1147 (2005). Subsection 2255(e) provides that A[a]n application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section [i.e., ' 2255], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.@ (Emphasis added.) In effect, a motion brought in the trial court under ' 2255 is the exclusive remedy available to a federal prisoner who is asserting a collateral challenge to his conviction or sentence. AIt is well settled a collateral challenge to a federal

conviction or sentence must generally be raised in a motion to vacate filed in the sentencing court under ' 2255... and not in a habeas petition filed in the court of incarceration... under ' 2241." Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003). No court has jurisdiction to hear a federal prisoner=s collateral challenge to his original conviction or sentence under 28 U.S.C. ' 2241, unless the prisoner has affirmatively demonstrated that the remedy provided by ' 2255 A>is inadequate or ineffective to test the legality of...[his] detention.=@ DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam), quoting 28 U.S.C. ' 2255. See also Von Ludwitz v. Ralston, 716 F.2d 528, 529 (8th Cir. 1983) (per curiam) (same). The Ainadequate or ineffective remedy@ exception is sometimes called the Asavings clause,@ (Abdullah,
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392 F.3d at 959), because when it applies, it can save a ' 2241 habeas petition from being dismissed under the ' 2255 exclusive remedy rule. In this case, it is readily apparent that Petitioner is challenging the validity of his conviction and sentence in his 1998 federal criminal case in the Western District of Wisconsin. He claims that the trial court lacked subject matter jurisdiction in the case, and that the judgment entered against him is therefore void, and should be set aside. Because Petitioner is directly challenging the validity of his conviction and sentence, his current habeas corpus petition is barred by ' 2255=s exclusive remedy rule, unless the savings clause applies here. In some cases, a ' 2241 habeas petition that is barred by the exclusive remedy rule can simply be construed to be a motion brought under ' 2255. The matter can then be transferred to the trial court so the prisoner=s claims can be addressed on the merits there. Here, however, Petitioner is precluded from seeking relief under ' 2255, because he has already sought such relief once before. Any new request for ' 2255 relief that might now come before the trial court would have to be treated as a Asecond or successive@ ' 2255 motion, which, under the Antiterrorism and Effective Death Penalty Act, (AAEDPA@), could not be entertained by the trial court without prior approval by the Circuit Court of Appeals for the circuit where Petitioner was convicted. 28 U.S.C. '' 2244(b)(3) and 2255(h). Without a pre-approval order from the appropriate circuit court, a trial court cannot exercise jurisdiction over a second or successive ' 2255 motion. Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996); see also Boykin v. United States,
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No. 99-3369 (8th Cir. 2000), 2000 WL 1610732 (unpublished opinion). Because the instant Petitioner has not obtained a pre-approval order from the Seventh Circuit Court of Appeals, the trial court could not entertain a new ' 2255 motion at this time. Id. Therefore, it would not be appropriate to construe the present habeas corpus petition as a ' 2255 motion, and attempt to transfer this matter to the court in which Petitioner was convicted and sentenced. It also appears that any ' 2255 motion that Petitioner might attempt to bring before the trial court at this time would be time-barred under the one-year statute of limitations applicable to ' 2255 motions. 28 U.S.C. ' 2255(f). For this additional reason, it would be inappropriate to construe the present petition to be a ' 2255 motion, and then transfer it to the trial court. Furthermore, it clearly appears that Petitioner deliberately elected to seek relief under the ' 2241 habeas corpus statute. He apparently believes that his current petition is exempt from ' 2255's exclusive remedy rule under the savings clause, and that he can challenge his conviction and sentence in a ' 2241 habeas proceeding, simply because he is not presently eligible for relief under ' 2255, due to the restrictions on successive motions and the one-year statute of limitations. That reasoning must be rejected. The rule against successive ' 2255 motions, and the one-year statute of limitations, would be rendered meaningless if a prisoner who is procedurally barred from bringing a ' 2255 motion could simply argue that the remedy provided by that statute has become Ainadequate or ineffective,@ and that he should therefore be
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allowed to bring his claims in a ' 2241 habeas corpus petition. Congress could not have intended for the rules governing successive ' 2255 motions, and the statute of limitations, to be so easily evaded. Indeed, the Eighth Circuit Court of Appeals has expressly confirmed that ' 2255 will not be viewed as inadequate or ineffective Amerely because ' 2255 relief has already been denied,... or because petitioner has been denied permission to file a second or successive ' 2255 motion... or because a second or successive ' 2255 motion has been dismissed, ... or because petitioner has allowed the one year statute of limitations and/or grace period to expire.@ United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (citations omitted). See also Hill, 349 F.3d at 1091 (Ain order to establish a remedy is >inadequate or ineffective= under ' 2255, there must be more than a procedural barrier to bringing a ' 2255 petition@); Abdullah, 392 F.3d at 959 (A' 2255 is not inadequate or ineffective merely because the claim was previously raised in a ' 2255 motion and denied, or because a remedy under that section is time-barred@); United States ex rel Perez v. Warden, FMC Rochester, 286 F.3d 1059, 1061-62 (8th Cir.) (reaffirming that ' 2255 is not rendered inadequate or ineffective by operation of the rules limiting successive ' 2255 motions), cert. denied, 537 U.S. 869 (2002). AA federal prisoner should be permitted to seek habeas corpus [under ' 2241] only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion.@ In re: Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Section 2255 is not inadequate or ineffective, thereby allowing a prisoner to challenge his
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conviction or sentence in a ' 2241 habeas corpus petition, @where a petitioner had any opportunity to present his claim beforehand.@ Abdullah, 392 F.3d at 963. Applying this rule here, the Court finds that Petitioner is not eligible for the ' 2255 savings clause, because he had a reasonable opportunity to raise his current claim for relief in his direct appeal, and again in his ' 2255 motion. He cannot now claim that ' 2255 is Ainadequate or ineffective@ simply because he failed to present his current arguments in his direct appeal or his prior ' 2255 motion. See Hill, 349 F.3d at 1092 (' 2255 is not an inadequate or ineffective remedy where the prisoner had Aat least two opportunities to raise [his] argument before the sentencing court@). The Court understands that Petitioner is claiming that the trial court lacked subject matter jurisdiction in his criminal case in the Western District of Wisconsin. However, the fact remains that Petitioner could have raised this jurisdictional argument in his direct appeal or in his ' 2255 motion. He has not shown that the remedies available in those prior proceedings were inadequate or ineffective for his current jurisdictional argument. As the Court of Appeals pointed out in Abdullah B A[T]he Due Process Clause of our Constitution does not require that a petitioner have more than one unobstructed procedural opportunity to challenge his conviction. >That does not mean he took the shot, or even that he or his attorney recognized the shot was there for the taking. All the Constitution requires, if it requires that much, is that the procedural opportunity have existed.=@ 392 F.3d at 963, quoting Wolford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). Based on Abdullah, the Court finds that the savings clause is not applicable

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here, for Petitioner=s current claim for relief. He had an adequate procedural opportunity to present his arguments before, and he is therefore barred from bringing them now in a ' 2241 habeas corpus petition.2 III. CONCLUSION In sum, the Court finds that: (1) Petitioner=s current application for habeas corpus relief challenges the validity of his 1998 federal criminal conviction in the Western District of Wisconsin, (2) such challenges can be raised only in a motion for relief under 28 U.S.C. ' 2255, unless the remedy provided by that statute is Ainadequate or ineffective;@ (3) the instant petition cannot be construed as a ' 2255 motion, because Petitioner is barred from seeking relief under ' 2255 by the rules governing successive petitions and the statute of limitations; and (4) Petitioner=s present inability to seek relief under ' 2255 does not cause the remedy provided by ' 2255 to be Ainadequate or ineffective@ so as to excuse him from ' 2255=s exclusive remedy rule. Thus, the Court concludes that Petitioner=s current ' 2241 habeas corpus petition cannot be entertained here, and that this action must be summarily dismissed for lack of jurisdiction. See DeSimone, 805 F.2d at 323-24 (' 2241 habeas petition challenging prior criminal conviction was properly dismissed for lack
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Although the ' 2255 exclusive remedy rule precludes the Court from adjudicating Petitioner=s current jurisdictional argument, it is worth noting that this argument appears to be entirely baseless. 18 U.S.C. ' 3231 states that AThe district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.@ It is hard to imagine how Congress could have made it more clear that the United States District Court for the Western District of Wisconsin has subject matter jurisdiction over alleged violations of federal criminal statutes occurring in that District.

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of subject matter jurisdiction, where petitioner had not demonstrated that ' 2255 motion was an inadequate or ineffective remedy); Abdullah, 392 F.3d at 964 (A[b]ecause Abdullah did not show that ' 2255 was inadequate or ineffective, the district court correctly concluded that it had no jurisdiction to consider his claim in a ' 2241 petition@). IV. RECOMMENDATION Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that: Petitioner=s application for habeas corpus relief under 28 U.S.C. ' 2241, (Docket No. 1), be DISMISSED for lack of jurisdiction.

Dated: June 9, 2009

s/ Jeanne J. Graham JEANNE J. GRAHAM United States Magistrate Judge

NOTICE Pursuant to D. Minn. LR 72.2(b), any party may object to this Report and Recommendation by filing and serving specific, written objections by June 24, 2009. A party may respond to the objections within ten days after service thereof. Any objections or responses filed under this rule shall not exceed 3,500 words. A District Judge shall make a de novo determination of those portions to which objection is made. Failure to comply with this procedure shall operate as a forfeiture of the objecting party=s right to seek review in the United States Court of Appeals for the Eighth Circuit.

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