Berman v. United States Of America

Filing 4

MEMORANDUM OPINION AND ORDER. Dismissed without prejudice and denied certificate of appealability.. Signed by Judge Frank Montalvo. (lc3)

ED

IN THE UNITED STATES DISTRICT COURI
FOR THE WESTERN DISTRICT OF
EL PASO DIVISION

TES,

KENNETH DEAN BERMAN,
Reg. No. 82369-208,

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BY

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AM

II.

U.S.J4RC1 COURT

Eu DL41T OF TEXAS

JS'
DEPUTY

EP-17-CV-314-FM

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UNITED STATES OF AMERICA.

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MEMORANDUM OPINION AND ORDER
Kenneth Dean Berman, a prisoner at the La Tuna Federal Correctional Institution in Anthony,

Texas,' seeks relief from his sentence through a pleading he identifies as a "Complaint."2 Berman,
proceeding pro se and informapauperis, explains he pleaded guilty to distributing child pornography, in

violation of 18 U.S.C.

§

2255A(a)(2)(B). Berman now asserts § 2255A(a)(2)(B) is unconstitutional.3

The Court, after reviewing the record and for reasons discussed below, will construe Berman's

"Complaint" as a petition for a writ of habeas corpus under 28 U.S.C. § 2241.

The Court, on its own

motion, will additionally dismiss Berman's petition, pursuant to 28 U.S.C. § 2243.

BACKGROUND AND PROCEDURAL HISTORY
On December 29, 2009, Berman knowingly distributed an image of child pornography in interstate
commerce via the internet. Berman pleaded guilty, pursuant to a plea agreement, to one count of

Anthony is located in El Paso County, Texas, which is within the jurisdictional limits of the Western
District of Texas, El Paso Division. 28 U.S.C. § 124(d)(3) (2012).
2

Compl. 1, ECF No. 1-2.

3id.

"28 U.S.C. § 2243 (2012) ("A court ... entertaining an application for a writ of habeas corpus shall

forthwith award the writ or issue an order directing the respondent to show cause why the writ should not
be granted, unless it appears from the application that the applicant or person detained is not entitled
thereto.").
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distributing child pornography, in violation of 18 U.S.C.

§

2255A(a)(2)(B), in the United States District

Court for the District of Arizona.5 In the plea agreement, Berman waived "any right to file an appeal, any
collateral attack, and any other writ or motion that challenge[d] the conviction ... including but not limited

to any appeals under 18 U.S.C.

§

3742 and motions under 28 U.S.C.

§

2241 and 2255.6 Berman was

sentenced to 90 months' imprisonment followed by a lifetime of supervised release.7 Berman did not file

a direct appeal or § 2255 motion.
In his "Complaint," Berman asserts 18 U.S.C. § 2255A(a)(2)(B) is unconstitutional. He claims it

(1) violates his First Amendment free speech protections; (2) exceeds the delegated enumerated powers

granted Congress by the Constitution; (3) usurps the police powers of the various states, (4) could not
apply to him because, as a resident of the State of Arizona, he did not reside in a territory or insular
possession of the United States Government; and (5) does not grant subject-matter jurisdiction to the
federal courts. He seeks a declaratory judgment,8 "which would result in [his] release from prison and all
other collateral sanctions and consequences resulting from said conviction."9

APPLICABLE LAW
Federal courts may construe and re-characterize apro se prisoner's action "according to the
D

Findings of the Magistrate Judge, ECF No. 36, United States v. Berman, 1:10-CR-843-SRB (D. Az.
Sept. 29, 2011). See Taylor v. Charter Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998) ("Rule 201 of the
Federal Rules of Evidence provides that a court may take judicial notice of an 'adjudicative fact' if the fact
is 'not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to
sources whose accuracy cannot be questioned.") (quoting Fed. R. Evid. 20 1(b)).
6

Plea Agreement 4, ECF No. 57, United States v. Berman, 1:10-CR-843-SRB (D. Az. Sept. 29, 2011).
J. Crim. Case, ECF No. 56, United States v. Berman, l:10-CR-843-SRB (D. Az. Sept. 29, 2011).

8

Compl. 29.
Id.

at2.
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essence of the prisoner's claims."10 "The relief sought by the prisoner or the label he places upon the

action is not the governing factor."11
"Federal law opens two main avenues to relief on complaints related to imprisonment: a petition
for habeas corpus ... and a [civil rights

complaint."2

The "sole function" of a habeas petition is relief

from unconstitutional custody, and "it cannot be used for any other purpose."13 Allegations complaining

of the rules, customs, and procedures affecting conditions of confinement or treatment of prisoners are
properly brought in a civil rights action under 42 U.S.C. § 1983 or Bivens.'4 Accordingly, "any
challenge to the fact or duration of a prisoner's confinement is properly treated as a habeas corpus
matter, whereas challenges to conditions of confmement may proceed under Section 1983
A motion to vacate under 28 U.S.C.

§

2255 "provides the primary means of collateral attack on a

federal sentence."6 Relief under § 2255 is warranted for errors that occurred at trial or sentencing.'7 A

10

Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 n.1 (5th Cir. 1987).

"Jackson v. Torres, 720 F.2d 877, 879 (5th Cir.

1983).

12

Muhammad v. Close, 540 U.S. 749, 750 (2004).

13

Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir. 1979) (ier curiam).

14

See 42 U.S.C. § 1983 (2012) (creating a private right of action for redressing violations of federal law
by state officials acting under color of state law); Inyo County v. Paiute-Shoshone Indians of the Bishop
City., 538 U.S. 701, 708 (2003); Balladv. Wall, 413 F.3d 510, 518 (5th Cir. 2005). See also Bivens v. Six
Unknown NamedAgents ofFederal Bureau ofNarcotics, 403 U.S. 388 (1971) (recognizing a right
implied directly under the Constitution to recover damages against a federal official for a violation of a
constitutional right); Evans v. Ball, 168 F.3d 856, 863 n.10 (5th Cir. 1999) ("A Bivens action is analogous
to an action under § 1983the only difference being that § 1983 applies to constitutional violations by
state, rather than federal officials.").
15

Jackson, 720 F.2d at 879.

16

Pack v.

Yusuff,

218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th

Cir. 1990)).
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§

2255 movant may only bring his motion in the district of conviction and sentence.18

By contrast, a petition for writ of habeas corpus under 28 U.S.C.

§

2241 "attacks the manner in

which a sentence is carried out or the prison authorities' determination of its duration."9 To prevail, a
2241 petitioner must show that he is "in custody in violation

§

of the Constitution or laws or treaties of the

United States."2° A § 2241 petitioner may make this attack only in the district court with jurisdiction over
his custodian.2'
Section 2255 contains a "savings clause" which acts as a limited exception to these rules. It

provides that a court may entertain a § 2241 petition challenging a sentence if it concludes that filing a §
2255 motion is inadequate to challenge a prisoner's detention.22 A petitioner must satisfy a two-prong

test before he may invoke the "savings clause" to address errors occurring at trial or sentencing in a
petition filed pursuant to § 2241:
[T]he savings clause of § 2255 applies to a claim (i) that is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense and (ii) that
was foreclosed by circuit law at the time when the claim should have been
17

Ojo

18

Pack, 218 F.3d at 452.

INS, 106 F.3d 680, 683 (5th Cir. 1997) ("Because all of the errors Ojo alleges [occurred before or
during sentencing], they must be addressed in a § 2255 petition, and the only court with jurisdiction to hear
that is the court that sentenced him.").
v.

' Id. at 451.
20

21

28 U.S.C.

§

2241(c) (2012).

United States

v.

Cleto, 956 F.2d 83, 84 (5th Cir. 1992).

22

See 28 U.S.C. 2255(e) ("An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that
the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test
the legality of his detention.") (emphasis added).

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raised in the petitioner's trial, appeal, or first § 2255

motion.23

A petitioner must prove both prongs to successfully invoke the savings

clause.24

Thus, § 2241 is not a

mere substitute for § 2255, and a petitioner bears the burden of showing the § 2255 remedy is inadequate
or ineffective.25
Finally, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not

entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner."26

ANALYSIS
Berman does not specify the statutory basis for his lawsuit in his prose "Complaint." He explains
he pleaded guilty to distributing child pornography, in violation of 18 U.S.C.

asserts

§

§

2255A(a)(2)(B), but now

2255A(a)(2)(B) is unconstitutional.27 He seeks a declaratory judgment.28 This, according to

Berman, "would result in [his] release from prison and all other collateral sanctions and consequences

resulting from said conviction."29
Because Berman challenges the fact of his imprisonment, the Court construes his "Complaint" as a

23

Reyes-Requena

24

Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005).

v.

United States, 243 F.3d 893, 904 (5th Cir. 2001).

25

Reyes-Requena, 243 F.3d at 901 (citing Pack, 218 F.3d at 452; Kinder v. Purdy, 222 F.3d 209, 214 (5th
Cir. 2000)).
26

28 U.S.C. foil. § 2254 R. 4; see R.

1

("The district court may apply any or all of these rules to a habeas

corpus petition ...").
27

Compi. 1.

281dat29.
29

Id.

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habeas corpus matter.3° Since Berman pleaded guilty in the United States District Court for the District

of Arizona, the Court lacks the jurisdiction necessary to address a § 2255 motion.31 The Court does have
jurisdiction over his custodian. The Court accordingly construes Berman's pleading as a § 2241
petition.32

Berman may proceed with an attack on the validity of his sentence under § 2241 only if he can
meet both prongs of the stringent test for the § 2255(e) "savings

clause."33

The first prong of the "savings clause" test is, essentially, an actual innocence requirement. The

"core idea is that the petitioner may be have been imprisoned for conduct which was not prohibited by
law."34

To meet the first prong, a petitioner must rely on a retroactively applicable Supreme Court

decision which establishes that he may have been convicted of a nonexistent offense.35
Bergman fails to identify a retroactively applicable Supreme Court decision which supports his
claim. Indeed, the Supreme Court has long upheld the constitutionality of laws prohibiting the
distribution of child pornography. In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court

rejected a First Amendment challenge and upheld a prohibition on the distribution and sale of child
pornography because, it explained, these acts were "intrinsically related" to the sexual abuse of children in

30

See Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir. 1998) ("[A} court may liberally construe apro se
petitioner's pleading and treat it as a habeas corpus petition, where appropriate.").
31

Pack, 218 F.3d at 452.

32

Cleto, 956 F.2d at 84.

Kinder, 222 F.3d at 212.
Reyes-Requena, 243 F.3d at 903.
Id. at 904.

at least two

the

ways.36

abuse.37

First, circulating child pornography continued to harm the child who participated in

Second, trafficking in child pornography provided an economic motive for producing more

child pornography and sexually exploiting children.38 Under either rationale, the distribution had a

proximate link to the crime of child sexual abuse. Thus, the Supreme Court concluded, the State had an
interest in closing the distribution network.
The second prong of the "savings clause" test is a foreclosure requirement. The petitioner must

show his claims were foreclosed by circuit law when he could have raised them at trial, on appeal, or in a
§

2255 motion. In this case, Berman's claim was foreclosed when he could have raised it in a direct

appeal or § 2255 motion. Furthermore, Berman's claim remains foreclosed by Supreme Court precedent.
Since Berman's claim does not meet the stringent requirements of the savings clause, the Court

will not allow him to proceed pursuant to § 2241.

CONCLUSION AND ORDERS
As explained above, the Court construes Berman's pro se "Complaint" as a petition for a writ of

habeas corpus under § 2241. The Court concludes, however, that the "savings clause" in § 2255 does not
provide authority for the Court to address Berman's pleading as a § 2241 petition. The Court will,

therefore, dismiss his § 2241 petition as frivolous. To the extent his petition may be construed as a §
2255 motion, the Court will dismiss it for lack ofjurisdiction.39 The Court accordingly enters the

following orders:

36

458 U.S. at 759.
Id. at 759 and n.1O.

38

Id. at760.
Ojo, 106 F.3d at 683.

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IT IS ORDERED that Kenneth Dean Berman's pro se "Complaint" is construed as a petition for
a writ of habeas corpus under 28 U.S.C. § 2241 and DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that all pending motions in this cause, if any, are DENIED AS
MOOT.

IT IS ALSO ORDERED that to the extent Kenneth Dean Berman's "Complaint" may be
construed as a successive § 2255 motion, he is denied a CERTIFICATE OF APPEALABILITY.4°

IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.

SIGNED this

7 day of November, 2017.

FRANK MONTALVO
UNITED STATES DISTRICT JUDGE

40

See

28 U.S.C. foil. § 2255 R. 11(a) ("The district court must issue or deny a certificate of appealability

when it enters a final order adverse to the applicant.").
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