Spencer v. Zickefoose et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/23/13. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMES SPENCER

:

Petitioner,

:

v.

:

DONNA ZICKEFOOSE, et al.
Respondents.

:

CIVIL ACTION NO. 3:13-1120
(MANNION, D.J.)
(SCHWAB, M.J.)

:

MEMORANDUM
Pending before the court is the June 7, 2013 report and
recommendation, (Doc. No. 7), of Judge Susan E. Schwab1 recommending
that the petition for writ of habeas corpus, (Doc. No. 1), be dismissed, and
petitioner’s motion to transfer the case, (Doc. No. 2), be denied. Petitioner
filed objections to the report and recommendation on July 8, 2013. (Doc. No.
8). After a de novo review of those portions of the report to which petitioner
objects, the report and recommendation will be ADOPTED IN FULL and the
petition for writ of habeas corpus will be DISMISSED. Petitioner’s motion to
transfer will be DENIED.

1

Petitioner at times identifies Magistrate Judge Schwab as “Magistrate
Schwab.” The title magistrate no longer exists in the U.S. Courts, having been
changed from “magistrate” to “magistrate judge” in 1990. Judicial
Improvements Act of 1990, 104 Stat. 5089, Pub. L. No. 101-650, §321 (1990)
(“After the enactment of this Act, each United States magistrate . . . shall be
known as a United States magistrate judge.”). Petitioner is reminded to use
the correct title, in the future, when referring to Judge Schwab.

I.

Background
Petitioner James Spencer is a prisoner at the Allenwood Penitentiary in

White Deer, Pennsylvania. In 1996, he was convicted of multiple firearm and
Hobbs Act violations in the Eastern District of Pennsylvania, and was
sentenced to life in prison. (Doc. No. 7, at 1). He filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §2255, which was denied
by the Eastern District of Pennsylvania in March 2000. See Docket sheet,
United States v. Spencer, 2:95-cr-00659 (E.D.Pa.). The Third Circuit denied
the request for a certificate of appealability of his §2255 motion. Id. Petitioner
then filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §2241
claiming that his indictment was defective, that his trial counsel was
ineffective, that his right to a fair trial was violated through prejudicial
comments made by the government during closing arguments, and that he
stood trial twice for the same crime. (Doc. No. 1). He also filed a motion to
transfer the case to the Eastern District of Pennsylvania on the basis that
relevant evidence and witnesses are located within that district. (Doc. No. 2).
Judge Schwab’s report recommends dismissing petitioner’s habeas
petition on the grounds that he may not seek relief under §2241, but that his
claims are instead properly brought as a motion pursuant to §2255. Judge
Schwab accordingly recommends that petitioner’s motion to transfer the case
be denied. (Doc. No. 7).
2

II.

Standard of Review
When objections to the report and recommendation of a magistrate

judge are timely filed, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010)(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.

3

III.

Discussion
Originally enacted in 1948 as the equivalent of the habeas writ, 28

U.S.C. §2255 requires that a federal prisoner’s request for collateral review
of a conviction or sentence must be brought by motion in the district of the
criminal court.2 The only exception allows a federal prisoner to bring a habeas
petition if a §2255 motion proves “inadequate or ineffective” to test the legality
of the petitioner’s detention. 28 U.S.C. §2255; Davis v. United States, 417
U.S. 333, 343 (1974); Hill v. United States, 368 U.S. 424, 427 (1962); In re
Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); In re Vial, 115 F.3d 1192, 1194
(4th Cir. 1997); Application of Galante, 437 F.3d 1164, 1165 (3d Cir. 1971).
In 1996, Congress imposed limitations on the availability of collateral
attack of convictions and sentences through amendments to §2255.3 The
amendments retained the original provisions of §2255 and, among other
things, added restrictions on an inmate’s ability to bring a second or
successive motion. The amendments required that a second or successive
motion must be certified by the appropriate court of appeals. Id. This

2

Section 2255 of Title 28 of the United States Code was deemed
necessary because a §2241 petition must be filed in the district where the
prisoner is confined and the “few District courts in whose territorial jurisdiction
major federal penal institutions are located were required to handle an
inordinate number of habeas corpus actions far from the scene of the facts
. . . solely because of the fortuitous concentration of federal prisons within the
district.” United States v. Hayman, 342 U.S. 205, 213-14 (1952).
3

Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110
Stat. 1214, (“AEDPA”).
4

“gatekeeping provision” restricts an inmate’s ability to bring a second or
successive motion by requiring the new motion to contain either newly
discovered evidence that, if proven, would be sufficient to establish that the
movant was not guilty, or a new rule of constitutional law made retroactive to
cases on collateral review by the Supreme Court. Id. While inmates may
attempt to circumvent the gatekeeping provisions of §2255 by bringing a claim
for collateral review of a conviction or sentence under §2241, §2241 is
available to attack the validity of a conviction or sentence only where a §2255
motion is inadequate or ineffective.
Courts have found that a §2255 motion is inadequate or ineffective only
where it is established “that some limitation of scope or procedure would
prevent a §2255 proceeding from affording the prisoner a full hearing and
adjudication of his claim of wrongful detention.” Galante, 437 F.2d at 1165 (3d
Cir. 1971)(quoting United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684
(3d Cir. 1954)). “It is the inefficacy of the remedy, not the personal inability to
use it, that is determinative.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538
(3d Cir. 2002). “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. The provision exists to ensure that
petitioners have a fair opportunity to seek collateral relief, not to enable them
to evade procedural requirements.” Id. at 539. The burden is on the petitioner
5

to demonstrate inadequacy or ineffectiveness. Galante, 437 F.2d at 1165.
The circumstances which make a §2255 motion inadequate or
ineffective were also addressed by the courts in Triestman v. United States,
124 F.3d 361 (2d Cir. 1997), and In re Dorsainvil, supra. Both the Triestman
and Dorsainvil courts held that a §2255 motion was only inadequate and
ineffective where the denial of habeas relief would raise serious constitutional
issues. Triestman, 124 F.3d at 377; Dorsainvil, 119 F.3d at 249. The serious
constitutional issue presented in those cases was that a change in
substantive law rendered the conduct for which the petitioner was convicted
no longer criminal. Triestman, 124 F.3d at 366; Dorsainvil, 119 F.3d at 251.
Thus, a high standard has been set for what a court will consider a serious
constitutional issue sufficient to allow a petitioner to bring a §2241 petition to
challenge a federal conviction or sentence.
The claims raised by petitioner, namely that his indictment and
conviction should be vacated because his indictment was defective, his
counsel was ineffective, his right to a fair trial was violated through prejudicial
comments, and he stood trial twice for the same crime, are challenges to his
conviction and sentence so as to bring them within the ambit of §2255. See
Darby v. Hawk-Sawyer, 405 F.3d 942 (11th Cir. 2005). Petitioner alleges that
§2255 relief is inadequate because this court will be unable to offer a full and
fair hearing because all witnesses and evidence are in the Eastern District of
Pennsylvania. (Doc. No. 8). This argument does not demonstrate that the
6

remedy under §2255 would be ineffective or inadequate. Petitioner has
already made a motion under §2255 challenging his conviction in the Eastern
District. See Docket sheet, United States v. Spencer, 2:95-cr-00659
(E.D.Pa.). He was denied relief, and his request for a certificate of
appealability was denied. Id. But the fact that the petitioner can therefore not
meet the procedural and gatekeeping requirements of 28 U.S.C. §2255 does
not mean that a remedy under §2255 would be inadequate or ineffective.
Cradle, 290 F.3d at 539. Petitioner may not circumvent the procedural
requirements of §2255 by filing a petition under §2241. Id.
Because the petitioner has not established that a remedy pursuant to
a §2255 motion is inadequate or ineffective to test the legality of his detention,
he may not proceed with his §2241 petition. The court will DISMISS
petitioner’s petition for writ of habeas corpus. (Doc. No. 1). Petitioner cannot
obtain relief under §2241, whether in this district or another. Thus, transferring
the case would be futile. The court will accordingly DENY petitioner’s motion
to transfer the case to the Eastern District. (Doc. No. 2). The clerk is directed
to close the case. A separate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: October 23, 2013
O:\Mannion\shared\MEMORANDA - DJ\2013 MEMORANDA\13-1120-01.wpd

7