BAKHTIARI v. RECKTENWALD

Filing 33

ORDER adopting Report and Recommendations re 21 Report and Recommendations and DISMISSING Petitioner's petition 4 . The Clerk shall mark this case CLOSED. Signed by Judge Barbara Rothstein on 2/13/2018. (kly)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALIREZA BAKHTIARI,

Civil Action No. 16-116

Petitioner,
ORDER ADOPTING THE REPORT
AND RECOMMENDATION AND
DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS

v.
MONICA RECTENWALD,
Respondent.

Before the Court are Petitioner’s Objections [23] to the Report and Recommendation
(“R&R”) [21] of the Honorable Susan Paradise Baxter, United States Magistrate Judge,
recommending dismissal of Petitioner’s petition for a writ of habeas corpus. Having reviewed the
Petition and all other relevant material, the Court adopts the decision of the Magistrate Judge.
I.

FACTUAL AND PROCEDURAL BACKGROUND

In or around 2009, Petitioner, acting pro se, brought a lawsuit for defamation against a
corporation, alleging that the corporation had sent emails in which it accused Petitioner of sex
trafficking. Doc. 16 (citing United States v. Bakhtiari, 714 F.3d 1057 (8th Cir. 2013)). 1 Defense
counsel suspected that Petitioner himself had authored the allegedly-defamatory emails, and
moved to inspect Petitioner’s computer. 714 F.3d at 1060. The court granted the motion and
ordered Petitioner to make his computer available within 14 days. Petitioner failed to do so, and
Defendant moved for sanctions. The following day, defense counsel received an email containing
photographs depicting, inter alia, rifle cross-hairs over the faces of certain of his family members.

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Petitioner filed a direct appeal challenging the computation of his sentence, which, in 2013, the Eighth Circuit
upheld. 714 F.3d 1057.

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Following a federal investigation, in March 2012, Petitioner was indicted for sending a
threatening communication in interstate commerce in violation of 18 U.S.C. § 875(c). 714 F.3d at
1060. Petitioner wanted to proceed pro se, but ultimately agreed to a court-appointed “hybrid”
attorney. Petitioner moved to dismiss the indictment “on the basis of government misconduct,”
alleging that the federal agents who had arrested Petitioner had subjected him and his girlfriend to
“torture” and “sexual abuse.” The allegations were refuted by several photographs taken during
the execution of the relevant search warrant and arrest; and the Government filed a superseding
charging document, additionally alleging that Petitioner had obstructed, influenced, or impeded an
official proceeding, or that he had attempted to do so, pursuant to 18 U.S.C. § 1512(c)(2). Id.
In August 2012, Petitioner pled guilty to the § 1512(c)(2) charge, and the Government
dismissed the § 875(c) charge. 714 F.3d at 1060. Petitioner, in his stipulation of facts, admitted
the following: that he had forged the “defamatory” documents at issue in his civil lawsuit; that he
had caused the threatening email to be sent to defense counsel in that suit; and that he had
fabricated the “torture” allegations against the federal officials. The stipulation of facts was read
into the record during Petitioner’s plea colloquy. When asked by the district court whether he had
any disagreements with the facts set forth, Petitioner responded: “No.” In November 2012,
Petitioner was sentenced to a 51-month term of imprisonment to be followed by a three-year term
of supervised release. Id.
In July 2013, Petitioner moved in the trial court to vacate his sentence pursuant to 28 U.S.C.
§ 2255, alleging that the court had improperly calculated his sentence and that he had received
ineffective assistance of counsel. Bakhtiari v. United States, 2014 WL 1213241 (E.D. Mo. Mar.
24, 2014). In March 2014, the court denied Petitioner’s motion and denied a certificate of

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appealability. Id. In July 2014, the Eighth Circuit denied Petitioner’s subsequent request for a
certificate of appealability. Doc. 21.
In May 2016, Petitioner, who, at the time was incarcerated in a federal prison in Western
Pennsylvania, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Doc. 4. Petitioner has since been released from incarceration and is serving his term of supervised
release. Doc. 16-1.
In her R&R, Magistrate Judge Baxter recommends that Petitioner’s petition pursuant to 28
U.S.C. § 2241 be dismissed for lack of subject matter jurisdiction. Doc. 21. Petitioner timely filed
objections. Doc. 23.
II.

STANDARDS OF REVIEW

When a party objects to an R&R, the district court must review de novo those portions
of the R&R to which objection is made. See United States v. Raddatz, 447 U.S. 667, 673 (1980);
Fed. R. Civ. P. 72(b). The district court may accept, reject, or modify, in whole or in part, the
findings and recommendations made by the Magistrate Judge. Raddatz, 447 U.S. at 673-74.
“A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations omitted); Cf. Fed. Rule.
Civ. Pro. 8(f) (“All pleadings shall be so construed as to do substantial justice”).
III.

THE COURT LACKS SUBJECT MATTER JURISDICTION TO CONSIDER
PETITIONER’S § 2241 PETITION

Petitioner, in his 28 U.S.C. § 2241 petition, maintains that recent case law necessitates that
the Court find him “actually innocent of the unde[r]lying substantive crime” to which he pled
guilty. See Doc. 4 at 5-7 (citing United States v. Petruk, 781 F.3d 438 (8th Cir. 2015); Elonis v.
United States, 135 S.Ct. 2001 (2015)). The R&R disagreed. Doc. 21. Specifically, the R&R found
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that claims of actual innocence—as opposed to claims challenging the duration or execution of an
inmate’s section—must be brought pursuant to 28 U.S.C. § 2255. Id. at 5, 7 (citing McGee v.
Martinez, 627 F.3d 933, 935 (3d Cir. 2010)). Section 2255 prohibits a district court from reviewing
a § 2241 petition unless it “appears that the remedy by [§ 2255] motion is inadequate or ineffective
to test the legality” of a petitioner’s detention. 28 U.S.C. § 2255(e). Here, the R&R found, § 2255
is not inadequate or ineffective for two reasons. Id. at 7-10. First, § 2255 prohibits successive §
2255 motions; Petitioner already filed for (and was denied) § 2255 relief; and § 2255 is not
“‘inadequate or ineffective’ merely because [a] petitioner is unable to meet the stringent”
prohibition against successive petitions. Id. (quoting In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.
1997)).

Second, neither Elonis nor Petruk necessitate a finding that Petitioner is actually

innocent. 2 Doc. 21 at 9. In Elonis, the Supreme Court found that 18 U.S.C. § 875(c) requires proof
that a defendant intended to issue threats, or that he knew that his interstate communication would
be received as a threat. 135 S.Ct. 2001 (2015). Here, the Government dismissed the § 875(c)
count, and Petitioner pled guilty only to the § 1512(c)(2) count. In Petruk, in relevant part, the
Eighth Circuit found that a defendant who acts with the intent of obstructing a state criminal
proceeding does not, as a matter of law, obstruct an “official proceeding,” as required for
conviction under § 1512(c)(2). 781 F.3d 438, 445 (8th Cir. 2015) (citing 18 U.S.C. § 151(a)(1)(A)).
Here, Petitioner, during his plea colloquy, stipulated that he acted to obstruct a federal proceeding.
In his Objections, Petitioner continues to maintain that Burrage, Elonis, and Petruk
necessitate a finding that Petitioner is actually innocent. See Doc. 23 at 7-10. For the reasons

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Petitioner, in his petition, also relies upon Burrage v. United States, 134 S.Ct. 881 (2014), which, the R&R points
out, was decided while Petitioner’s § 2255 motion was pending before the Eighth Circuit. Doc. 21 at 9. Accordingly,
for the reasons detailed in the R&R, Burrage does not constitute an intervening change in the law that would allow
the Court to review a § 2241 petition. See id. In any event, at issue in Burrage was whether a defendant can be liable
for penalty enhancements under § 841(b)(1)(C) of the Controlled Substances Act when the defendant supplies
controlled substances to a victim, but is not the but-for cause of the victim’s death or injury. 134 S. Ct. 881 (2014).
Thus, Burrage is irrelevant to the instant § 2241 petition. See id.

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described above and in the R&R, Petitioner is incorrect. See Doc. 21 at 8-10. Thus, the instant
case is not, as Petitioner maintains, one of the “rare” cases contemplated by Dorsainvil that would
allow the Court to review a § 2241 petition that challenges the validity of a conviction. See 119
F.3d 245 (3d Cir. 1997) (finding that inmate who had previously filed a § 2255 petition could file
a § 2241 petition because he was being detained for conduct that had subsequently been rendered
non-criminal by an intervening Supreme Court decision, but noting that such circumstances are
“rare” and “uncommon”). Accordingly, the Court lacks subject matter jurisdiction to consider
Petitioner’s § 2241 petition, and, therefore, the Court ADOPTS the R&R [21] and DISMISSES
Petitioner’s petition for a writ of habeas corpus [4].
IT IS SO ORDERED.
DATED this 13th day of February, 2018.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

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