Marcusse v. FCI Waseca

Filing 20

MEMORANDUM OPINION AND ORDER adopting 5 Report and Recommendation; denying as moot 10 Petitioner's Motion to Strike Response; denying as moot 14 Motion to Strike Pleading Response; and denying as moot 15 Motion for Leave to file Supplemental or Relation-Back Pleading to Add Change in Law Invalidating Convictions & Sentence Based on Innocence. (Written Opinion) Signed by Judge Susan Richard Nelson on 3/13/2018. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Janet Mavis Marcusse,

Case No. 17-cv-4656 (SRN/LIB)

Petitioner,
v.

MEMORANDUM OPINION
AND ORDER

Warden FCI Waseca,
Respondent.

Janet M. Marcusse, Reg. No. 17128-045, Federal Correctional Institution, P.O. Box 1731,
Waseca, Minnesota, Pro Se.
Anna H. Voss, United States Attorney’s Office, 300 South Fourth Street, Suite 600,
Minneapolis, Minnesota, for Respondent.

SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
This matter comes before the Court on the Objection [Doc. No. 6] of Petitioner Janet

Mavis Marcusse to United States Magistrate Judge Leo I. Brisbois’s Report and
Recommendation (“R&R”) dated November 16, 2017 [Doc. No. 5]. The magistrate judge
recommended that Marcusse’s Petition for Writ of Habeas Corpus (“Petition”) [Doc. No. 1]
be dismissed without prejudice for lack of jurisdiction.
Pursuant to statute, this Court reviews de novo any portion of the magistrate judge’s
R&R to which specific objections are made, and “may accept, reject, or modify, in whole or
in part, the findings or recommendations” contained in that R&R.

28 U.S.C.

§ 636(b)(1)(C); see also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b)(3). For the reasons
stated herein, the Court overrules Petitioner’s Objection and adopts the R&R in its entirety.
II.

BACKGROUND
The facts underlying this case are accurately detailed in the R&R, the background

section of which the Court incorporates by reference here. Briefly stated, Petitioner was
convicted in 2005 in the Western District of Michigan of 60 counts of fraud and money
laundering in connection with a Ponzi scheme through which she stole over $12 million
from her investors. (R&R at 1.) She was sentenced to a total of 25 years’ imprisonment, and
her conviction and sentence were upheld by the Sixth Circuit. See Marcusse v. United
States, 785 F. Supp. 2d 654, 660 (W.D. Mich. 2011).
Following her conviction, Petitioner initiated a lengthy series of legal challenges,
including the petition presently before the Court. (R&R at 1.) Before her direct appeal she
moved for a judgment of acquittal based on insufficiency of the evidence. (Id.) After her
direct appeal, she sought relief under 28 U.S.C. § 2255, raising thirty separate grounds
which were analyzed carefully and rejected by the federal district court in Michigan. See
Marcusse, 785 F. Supp. at 678. Among other filings, she subsequently requested leave to
file at least five additional or amended § 2255 motions, all of which were rejected by the
Sixth Circuit. (R&R at 2.) Prior to the present action she also filed two other habeas
petitions in the Northern District of Florida, where she was previously incarcerated. See
Marcusse v. Warden FCI Tallahassee, No. 4:14CV301-MW/CAS, 2016 WL 7634460
(N.D. Fla. Nov. 23, 2016).
The matter now before the Court is Petitioner’s third Petition for Writ of Habeas
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Corpus. Magistrate Judge Brisbois recommends that the Court dismiss the Petition
without prejudice because the Court lacks jurisdiction to hear a federal prisoner’s
collateral challenge to her original sentence by a habeas petition when § 2255 provides an
adequate or effective means to test the legality of the conviction. (R&R at 2.)
Petitioner timely filed an Objection to the R&R. The Objection generally alleges
that the Court has jurisdiction to consider her Petition under § 2255(e). (Obj. at 1.) The
Government responded, urging the Court to adopt the R&R in its entirety. (Resp’t Resp.
[Doc. No. 8] at 1.)
III.

DISCUSSION
A.

Standard of Review

Upon issuance of an R&R, a party may “serve and file specific written objections to
the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2) (emphasis added).
“The objections should specify the portion of the magistrate judge’s [R&R] to which
objections are made and provide a basis for those objections.” Mayer v. Walvatne, No. 07cv-1958 (JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which
are not specific but merely parrot arguments already presented to and considered by the
magistrate judge are not entitled to de novo review. Dunnigan v. Fed. Home Loan Mortg.
Corp., No. 15-cv-2626 (SRN/JSM), 2017 WL 825200, at *3 (D. Minn. Mar. 2, 2017) (citing
Mashak v. Minnesota, No. 11-cv-473 (JRT/JSM), 2012 WL 928251, at *2 (D. Minn. Mar.
19, 2012)). Furthermore, when presenting arguments to a magistrate judge, parties must put
forth “not only their ‘best shot’ but all of their shots.” Ridenour v. Boehringer Ingelheim
Pharm., Inc., 679 F.3d 1062, 1067 (8th Cir. 2012) (quotations and citations omitted). Thus,
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a party cannot, in her objections to an R&R, raise arguments that were not clearly presented
to the magistrate judge. Hammann v. 1-800 Ideas.com, Inc., 455 F. Supp. 2d 942, 947-48
(D. Minn. 2006).
B.

§ 2255 Savings Clause

It is well settled that a federal inmate must raise a collateral challenge to her
conviction or sentence in a motion to vacate filed in the sentencing court under § 2255,
not in a habeas petition filed in the court of incarceration under § 2241. Hill v. Morrison,
349 F.3d 1089, 1091 (8th Cir. 2003). Federal district courts therefore lack jurisdiction to
hear a prisoner’s collateral challenge to her original conviction or sentence brought under
§ 2241 unless the prisoner qualifies for § 2255(e)’s “savings clause.” See id. The savings
clause applies when it “appears that the remedy by motion is inadequate or ineffective to
test the legality of [the] detention.” 28 U.S.C. § 2255(e). It is the petitioner’s burden to show
that the remedy under § 2255 would be inadequate or ineffective. Abdullah v. Hendrick, 392
F.3d 957, 959 (8th Cir. 2004).
Petitioner has failed to show that her § 2255 remedy would be inadequate or
ineffective. To succeed under the savings clause, Petitioner must show more than a
procedural barrier to filing a § 2255 claim, and more than the fact that a claim was
previously raised in a § 2255 motion and rejected by the court. Id. Petitioner must show, at a
minimum, that she had “no earlier procedural opportunity” to present her claims. Id. at 963.
But Petitioner falls far short of meeting her burden.
In his R&R, Magistrate Judge Brisbois concluded that not only was Petitioner
afforded “ample opportunity to challenge her conviction and sentence” under § 2255, but
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that she “fully availed herself” of that opportunity. (R&R at 3.) Indeed, Petitioner’s lengthy
§ 2255 motion in the Western District of Michigan required multiple orders totaling 117
pages for the court to fully analyze and reject. (R&R at 1.) Petitioner’s current petition
raises no argument she could not have raised earlier, presents no evidence that she could not
have been aware of earlier, and offers no adequate, intervening legal authority to support her
arguments.1 (R&R at 3.) Because Petitioner cannot show her § 2255 remedy is inadequate
or ineffective, the Court lacks jurisdiction to hear her petition.2
IV.

CONCLUSION
For the reasons stated, the Court concludes that the Petitioner’s Petition for Writ of

Habeas Corpus must be dismissed. Accordingly, the Court overrules all objections, and
adopts the R&R.
THEREFORE, IT IS HEREBY ORDERED THAT:
1. Petitioner’s Objection [Doc. No. 6] to the Magistrate Judge’s November
16, 2017 Report and Recommendation is OVERRULED;
2. The Court ADOPTS the Report and Recommendation [Doc. No. 5] in its
entirety; and

1

One of Petitioner’s earlier § 2241 petitions filed in the Northern District of Florida
presented the same arguments she presents here and was dismissed for the same reasons.
See Marcusse v. Tallahassee, No. 4:14CV301-MW/CAS, 2016 WL 7634460 (N.D. Fla.
Nov. 23, 2016). Petitioner’s Supplemental & Relation-Back Pleading [Doc. No. 19] does
not change this Court’s analysis.

2

Accordingly, Petitioner’s subsequent Motion to Strike Response [Doc. No. 10], Motion
to Strike Pleading Response [Doc. No. 14], and Motion for Leave to File Supplemental or
Relation-Back Pleading to Add Change in Law Invalidating Convictions & Sentence
Based on Innocence [Doc. No. 15] are denied as moot. This Court lacks jurisdiction to
consider Petitioner’s arguments.
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3. Petitioner’s Petition for Writ of Habeas Corpus [Doc. No. 1] is
DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
4. Petitioner’s Motion to Strike Response [Doc. No. 10], Motion to Strike
Pleading Response [Doc. No. 14], and Motion for Leave to File
Supplemental or Relation-Back Pleading to Add Change in Law
Invalidating Convictions & Sentence Based on Innocence [Doc. No. 15]
are DENIED AS MOOT.

Dated: March 13, 2018

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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