Marcusse v. FCI Waseca

Filing 29

ORDER denying 22 Motion and 26 Motion. (Written Opinion) Signed by Judge Susan Richard Nelson on 10/30/2018. (KML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Janet Mavis Marcusse,

Case No. 0:17-cv-4656 (SRN/LIB)

Petitioner,
ORDER
v.
Warden FCI Waseca,
Respondent.

Janet Mavis Marcusse, 17128-045, FCI–Waseca, Unit A, P.O. Box 1731, Waseca,
Minnesota 56093, pro se.
Ana H. Voss & Ann M. Bildtsen, United States Attorney’s Office, 300 South Fourth Street,
Suite 600, Minneapolis, Minnesota 55415, for Respondent.

SUSAN RICHARD NELSON, United States District Judge
Plaintiff, Janet Mavis Marcusse, moves to amend findings and conclusions under
Federal Rule of Civil Procedure (“FRCP”) 52(a), alter or amend judgment under FRCP
59(e), and vacate judgment under FRCP 60(b) [Doc. No. 22] after this Court dismissed
her Petition for a Writ of Habeas Corpus and entered judgment in the matter. Marcusse
also moves to “vacate,” “default,” and “strike” respondent’s opposition and for judicial
notice under Federal Rule of Evidence 201 [Doc. No. 26]. The Government responds in
opposition to Plaintiff’s motions [Doc. No. 25]. For the reasons set forth below, this
Court denies Marcusse’s motions.
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 28 U.S.C.
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§ 2255, Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003), not a motion filed in the
court of incarceration under 28 U.S.C. § 2241. A federal district lacks jurisdiction to hear
a prisoner’s collateral challenge to her original conviction or sentence unless the prisoner
qualifies for § 2255(e)’s “savings clause.” Hill, 349 F.3d at 1091. 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 Report and Recommendation (“R&R”), Magistrate Judge Brisbois ruled
that, not only was Petitioner afforded “ample opportunity to challenge her conviction and
sentence” under § 2255, but that she “fully availed herself” of that opportunity. (Id. [Doc.
No. 5] 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. (Id. at 1.) Petitioner’s current petition raises no argument she could not have raised
earlier and offers no adequate, intervening legal authority to support her arguments. (Id.
at 3.) Because Petitioner cannot show her § 2255 remedy is inadequate or ineffective, the
Court lacks jurisdiction to hear her petition.

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Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Marcusse’s Motion to Amend Findings and Conclusions, Alter or
Amend judgment, and Vacate Judgment [Doc. No. 22] is DENIED;
2. Defendant Marcusse’s Motion to Vacate Respondent’s Opposition, Default
Respondent’s Opposition, Strike Respondent’s Opposition, and for Judicial
Notice [Doc. No. 26] is DENIED.

Dated: October 30, 2018

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

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