Kates v. Thomas et al

Filing 8

MEMORANDUM re 4 REPORT AND RECOMMENDATIONS re 3 MOTION for Leave to Proceed in forma pauperis filed by David E Kates, 1 Petition for Writ of Habeas Corpus filed by David E Kates Signed by Honorable A. Richard Caputo on 2/5/13. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID E. KATES,
Petitioner,
v.

CIVIL ACTION NO. 3:12-CV-2270
(JUDGE CAPUTO)
(MAGISTRATE JUDGE CARLSON)

J.E. THOMAS, et al.,
Respondents.
MEMORANDUM
Presently before the Court are the Magistrate Judge’s Report and Recommendation
(“R&R”) (Doc. 4) and Petitioner David Kates’s objections (Doc. 7). Magistrate Judge Martin
C. Carlson recommends that Mr. Kates’s Motion to Proceed In Forma Pauperis (Doc. 3) be
granted, but that his Petition for Habeas Corpus (Doc. 1), filed pursuant to 28 U.S.C. §
2241, be dismissed without prejudice. (Doc. 4 at 8.) Because Mr. Kates’s claims are not
properly brought pursuant to 28 U.S.C. § 2241 in this Court, but should instead be brought
pursuant to 28 U.S.C. § 2255 in the United States District Court for the Northern District of
Texas, the R&R will be adopted.
BACKGROUND
Petitioner David Kates is a federal inmate currently incarcerated at the United States
Penitentiary, Lewisburg in Lewisburg, Pennsylvania. He is serving a thirty-year federal
sentence imposed by the United States District Court for the Northern District of Texas in
1997. (Doc. 7 at ¶ 2.) On November 15, 2012, he filed a petition for habeas corpus
pursuant to 28 U.S.C. § 2241, arguing that his conviction in federal district court was
unconstitutional or unlawful because the federal government acted unlawfully or without
proper authority in prosecuting him for an unspecified crime or crimes that he believes were
the exclusive jurisdiction of Texas law enforcement authorities.1 (Doc. 1 at 4–5.) He also

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Mr. Kates’s petition provides few details about the nature of his criminal
conviction or convictions, the sentence that was imposed, or his efforts to secure
post-conviction relief in the sentencing court.

filed a motion to proceed in forma pauperis (Doc. 3) the same day.
In a R&R dated November 16, 2012, Magistrate Judge Carlson recommended
granting Mr. Kates’s motion to proceed in forma pauperis and dismissing his § 2241 habeas
corpus petition on the grounds that he is required to pursue his desired relief through a §
2255 habeas corpus petition filed in the United States District Court for the Northern District
of Texas, which sentenced him. (Doc. 4 at 8.) Mr. Kates timely filed objections to the R&R
on November 27, 2012. (Doc. 7.) He maintains that he is not challenging his conviction or
sentence, but rather the district court’s lack of proper jurisdiction or authority to convict or
sentence him. (Id. at ¶¶ 7, 9.) He also notes that he has unsuccessfully challenged his
conviction and sentence through direct appeal and a § 2255 petition and contends that a
§ 2241 petition is proper under these circumstances because the § 2255 petition has been
ineffective and inadequate. (Id. at ¶¶ 8, 13.) Thus, the R&R is ripe for disposition.
DISCUSSION
I. Legal Standard for Reviewing a Report and Recommendation
Where objections to the Magistrate Judge’s report are filed, the court must conduct
a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099,
1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both
timely and specific, Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir. 1984). In making its de novo
review, the court may accept, reject, or modify, in whole or in part, the factual findings or
legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829
F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the
court to rely on the recommendations of the magistrate judge to the extent it deems proper.
See United States v. Raddatz, 447 U.S. 667, 675–76 (1980); Goney, 749 F.2d at 7; Ball v.
United States Parole Comm’n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested
portions of the report may be reviewed at a standard determined by the district court. See
Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court
should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v.
Chater, 990 F. Supp. 375, 376–77 (M.D. Pa. 1998). As such, the Court reviews the portions
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of the R&R to which the petitioner objects de novo. The remainder of the R&R is reviewed
for clear error.
II. Analysis
A habeas corpus petition is the proper mechanism for a federal prisoner to challenge
the “fact or duration” of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498–99
(1973). A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than
its validity and must be filed in the district where the prisoner is confined, whereas a petition
under 28 U.S.C. § 2255 attacks the legality of detention and must be filed in the district that
imposed the sentence. See In re Nwanze, 242 F.3d 521, 523 (3d Cir. 2001). When a
defendant is challenging his conviction and sentence, and not the execution thereof, such
challenges must be brought pursuant to § 2255 unless this “remedy by motion is inadequate
or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); In re Dorsainvil, 119
F.3d 245, 249–51 (3d Cir. 1997).
“A § 2255 motion is inadequate or ineffective only where the petitioner
demonstrates that some limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of his wrongful detention
claim.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). This
“safety valve” was intended to be extremely narrow and applied only in rare
circumstances, and not intended to allow prisoners to evade procedural requirements.
Id. at 539; Dorsainvil, 119 F.3d at 248–49. “Section 2255 is not inadequate or
ineffective merely because the sentencing court does not grant relief, the one-year
statute of limitations has expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.” Cradle, 290 F.3d. at 539.2 Rather,
the “safety valve” under § 2255 has been held to apply only in unusual situations, such
as those in which a prisoner has had no prior opportunity to challenge his conviction for

2

Section 2255's “gatekeeping” provision, section 2255(h), prohibits a second or
successive 2255 motion unless certain requirements are met.

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conduct later deemed to be non-criminal by an intervening change in law. Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing In re Dorsainvil, 119 F.3d at 251).
If a prisoner improperly challenges his federal conviction or sentence under § 2241, the
petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d
1164, 1165 (3d Cir. 1971); Hill v. Williamson, 223 F. App'x 179, 180 (3d Cir. 2007)
(nonprecedential).
As an initial matter, this Court must resolve whether Mr. Kates presents a claim
challenging “the execution of his sentence.” If he does not, this Court does not have
habeas jurisdiction over his claim. See Woodall v. Fed. Bureau of Prisons, 432 F.3d
235, 242–43 (3d Cir. 2005). Applying the above applicable legal principles, and an
examination of the relief sought by Mr. Kates, the Court holds that his characterization of
his claim as a challenge to the execution of his sentence, rather than a challenge to the
legality of his conviction and sentence, is untenable.
Although Mr. Kates has styled his petition as challenging the execution of his
sentence under § 2241 (Doc. 1; Doc. 7 at ¶¶ 7, 9, 12), it is clear that he is actually
contesting the underlying validity of his conviction and sentence. Mr. Kates notes that
he his challenging the fact that he is confined (Doc. 7 at ¶ 9) and repeatedly claims that
the sentence imposed upon him is unlawful because the United States District Court for
the Northern District of Texas was without jurisdiction to do so (Doc. 1 at 4, 8; Doc. 7 at
¶¶ 5, 7, 12). He requests for this Court to “render [his] conviction void, illegal, and
unconstitutional” and immediately release him from federal prison. (Doc. 1 at 8.)
As Mr. Kates is challenging his conviction and sentence, and not the execution
thereof, his habeas corpus petition must be brought pursuant to § 2255 unless this
“remedy by motion is inadequate or ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e); In re Dorsainvil, 119 F.3d 245, 249–51 (3d Cir. 1997). He claims that
a § 2441 petition is appropriate here because he has been unable to obtain relief
through § 2255, thereby rendering § 2255 ineffective and inadequate. (Doc. 7 at ¶¶ 8,
13.) He asserts that the sentencing court has “illegally and erroneously” construed his
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previous attempts at obtaining post-conviction relief as successive § 2255 petitions. (Id.
at ¶ 13.) However, “Section 2255 is not inadequate or ineffective merely because the
sentencing court does not grant relief . . . .” Cradle, 290 F.3d at 539. Accordingly,
because Mr. Kates’s claims fall within the purview of § 2255, which is not inadequate or
ineffective under these circumstances, the Court finds that he cannot advance his claims
in a § 2241 petition.3 Given that Mr. Kates has improperly challenged his federal
conviction or sentence under § 2241, his habeas corpus petition must be dismissed for
lack of jurisdiction, see Woodall, 432 F.3d at 242–43, and the Magistrate Judge’s R&R
will be adopted.
CONCLUSION
For the reasons stated above, the Magistrate Judge’s R&R (Doc. 5) will be adopted.
Mr. Kates’s Motion to Proceed In Forma Pauperis (Doc. 3) will be granted and his Petition
for Habeas Corpus (Doc. 1) will be dismissed without prejudice.
An appropriate order follows.

February 5, 2013
Date

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/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

The fact that he has previously filed an unsuccessful § 2255 petition does not
alter the Court’s finding as to the unavailability of § 2241 to challenge the validity
of his conviction or sentence. Consequently, he must file a motion in the United
States Court of Appeals for the Fifth Circuit seeking an order authorizing the
United States District Court for the Northern District of Texas to consider a
second or successive motion under 28 U.S.C. § 2255. See 28 U.S.C. §§ 2244,
2255. The fact that he is unlikely to secure such a certification does not render
the § 2255 process “inadequate or ineffective.”

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