Hall v. Chandler
OPINION AND ORDER: the Court DISMISSES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for lack of jurisdiction. A certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 4/6/2017) (npk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RODNEY W. CHANDLER, Warden,
Civil Action No. 4:16-CV-256-Y
OPINION AND ORDER
Before the Court is petitioner Virgil Hall’s “Common Law Writ
of Habeas Corpus Pursuant to Rule 81(a)(4),” construed as a
petition for a writ of habeas corpus under 28 U.S.C. § 2241. After
having considered the petition and relief sought by Petitioner, the
Court has concluded that the petition should be dismissed for lack
Factual and Procedural Background
Petitioner is serving a 120-month term of imprisonment on his
2011 conviction in the Central District of Utah for possession with
intent to distribute cocaine. (J., United States v. Virgil Hall,
charged with various disciplinary violations, apparently resulting
in the loss of commissary and phone privileges. (Pet. 3-4, ECF No.
1.) By way of this petition, Petitioner asserts the following claim
and requests the following relief (all misspellings and grammatical
errors are in the original):
Petitioner hereby challenge the legalness of his
confinement/imprisonment and the authority that give the
F.B.O.P. the right to punish the Petitioner. Petitioner
ask this Honorable Court to instruct the defendant to
show proper paper work that give him authority (28 U.S.C.
2249) or give justice where justice is due by immediate
release of the Petitioner.
(Id. at 5.)
Petitioner challenges the Bureau of Prisons (BOP) authority to
discipline and punish him on the basis that he was not “duly
convicted” in light of “inaccurate, incomplete and untimely [court]
records” that “carry no legal force” and render his judgment of
conviction void. (Pet’r’s Rely 2.) Specifically, he complains that
(all misspellings and grammatical errors are in the original):
[t]he indictment has an unidentified person signing for
the Assistance U.S. Attorney and no signature for a
foreperson showing 12 jurors or more concured to bond
Petitioner over for trial. . . . Without an indictment
one cannot render a judgment, and any court can dismiss
or over turn a void judgment.
(Id. at 2.) Petitioner also complains that the indictment and
judgment of conviction “are without a clerk signature and court
seal.” (Id. at 2.) In essence, Petitioner challenges the validity
of his conviction couched as a challenge to the BOP’s authority to
detain and punish him.1
The Court notes that the BOP has statutory authority to detain individuals
charged with or convicted of offenses against the United States, including the
authority to discipline individuals charged with or convicted of offenses against
the United States. See 18 U.S.C. § 4042(a)(3).
A § 2241 petition attacking a federal conviction may only be
considered if the petitioner establishes that the remedy under §
2255(e) is “inadequate or ineffective to test the validity of his
detention.” 28 U.S.C. § 2255(e) (the so-called “savings clause”);
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). To meet this
burden, a petitioner must show that (1) the petition raises a claim
that is based on a retroactively applicable Supreme Court decision,
(2) the claim was foreclosed by circuit law at the time it should
have been raised in the petitioner’s trial, appeal, or first § 2255
motion, and (3) the retroactively applicable decision establishes
that the petitioner may have been convicted of a nonexistent
offense. Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010); ReyesRequena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
against him in the convicting court. Petitioner raised the same or
similar claim regarding the legitimacy of his indictment in his §
2255 motion in the context of an ineffective-assistance-of-counsel
claim. (Mem. 8-10, Hall v. United States, Case No. 2:14-CV-364-TS,
ECF No. 1-1.) The court addressed the issue as follows:
Petitioner asserts that the Indictment is not lawful
because it is merely a draft and not a final Indictment,
and because it does not contain the requisite signatures
by the U.S. Attorney or the foreman of the grand jury.
Having reviewed the Indictment filed on the public
docket in this matter, the Court finds that the
Indictment is a final, executed copy, not a draft.
Second, Assistant U.S. Attorney Drew Yeates signed the
Indictment on behalf of Assistant U.S. Attorney Paul
Kohler. Third, the foreperson’s signature is represented
by the notation “/s/” on the public docket copy of the
Indictment. The U.S. Supreme Court has explained, “[T]he
foreman’s duty to sign the Indictment is a formality, for
the absence of the foreman’s signature is a mere
technical irregularity that is not necessarily fatal to
the Indictment.” Moreover, the Tenth Circuit has found
that such a notation representing the foreman of the
grand jury is proper on the public copy of the
(Id. at 12 (footnotes omitted).)
Following denial of his § 2255 motion, Petitioner raised the
same or similar claim again in a Rule 60(b) motion, which the
convicting court dismissed as an unauthorized second or successive
§ 2255 motion. (Mot. & Order, United States v. Hall, Case No. 2:10cr-1109-TS-1, ECF Nos. 175 & 176.) Finally, to no avail, Petitioner
sought mandamus relief to compel the clerk of the district court to
answer his “Proving an Official Record,” certifying that his copy
of the indictment was a true and correct copy of his original
indictment and that it bears “the same style filing stamp, the
exact same U.S. Attorney signature . . ., that there is a black box
covering up the signature of the foreperson signature and that this
is a legal document and have legal force without the official court
(Order, United States v. Hall, Case No. 2:10-cr-1109-TS-1, ECF No.
188.) Petitioner cannot rely on § 2241 simply because his prior
requirements for a second or successive motion under § 2255. See
Pack v. Yusuff, 218 F.3d 448, 453 (5th Cir. 2000).
Because Petitioner has not met the criteria required to invoke
the savings clause of § 2255 as to the claim presented in this
habeas-corpus proceeding, the Court is without jurisdiction to
consider the petition. Christopher v. Miles, 342 F.3d 378, 385 (5th
For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
for lack of jurisdiction.
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. The certificate of appealability may
issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under this standard, when a district court denies
habeas relief by rejecting constitutional claims on their merits,
‘the petitioner must demonstrate that reasonable jurists would find
debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498 (5th
Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When the district court denies the petition on procedural grounds
without reaching the merits, the petitioner must show “that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). This inquiry involves two components, but a court
may deny a certificate of appealability by resolving the procedural
question only. Petitioner has not made a showing that reasonable
jurists would question this Court’s procedural ruling. Petitioner
has neither alleged nor demonstrated that she is entitled to
proceed under 28 U.S.C. § 2241. Therefore, a certificate of
appealability should not issue.
SIGNED April 6, 2017.
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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