Loiseau v. Beale

Filing 7

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/17/2015. Copy mailed to Pro Se Petitioner. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

MICHAEL A,

LOISEAU,

Petitioner-,
V.

Civil Action No.

JAMES V.

3:15CV191

BEALE,

Respondent.
MEMORANDUM OPINION

Petitioner,

Michael

proceeding pro se,
corpus

pursuant

No. 1),

Report
the

to

and

On

28

May

U.S.C.
his

7,

§

2254

§

2254

drug

2015,

Recommendation

successive

Loiseau,

a

Virginia

prisoner

submitted this petition for a writ of habeas

challenging

convictions.

A.

2254

kingpin

the

that

for

Petition,"

and

Magistrate

recommending
Petition

("§

the

want

of

ECF

racketeering

Judge
Court

issued

a

dismiss

jurisdiction.

Loiseau has filed objections.

I.

The

Magistrate

REPORT AND RECOMMENDATION

Judge

made

the

following

findings

recommendations:

This Court previously dismissed a § 2254 Petition from
Loiseau concerning these convictions.
Loiseau v.
Clarke, 3:12CV580 (E.D. Va. July 26, 2013)
(ECF Nos.
24,

25) .
The Antiterrorism and Effective

Death Penalty Act

of 1996 restricted the jurisdiction of the district
courts to hear second or successive applications for
federal habeas corpus relief by prisoners attacking
the validity of their convictions and sentences by
establishing a " "^gatekeeping' mechanism."
Felker v.
Turpin,
518
U.S.
651,
657
(1996).
Specifically,
''[b]efore a second or successive application permitted

and

by this section is filed in the district court, the
applicant shall move in the appropriate court of
appeals for an order authorizing the district court to
consider the application."
28 U.S.C. § 2244(b)(3)(A).
Because

the

Loiseau

United

Circuit

has

States

to

not

obtained

Court

file

a

of

authorization

Appeals

for

successive §

the

2254

from

Fourth

petition

challenging
these
convictions,
this
Court
lacks
jurisdiction to entertain the present § 2254 petition.
Accordingly, it is RECOMMENDED that the action be
DISMISSED FOR LACK OF JURISDICTION.

(Report and Recommendation entered on May 7, 2015 (alteration in
original.)

II.

STANDARD OF REVIEW

"The magistrate makes only a recommendation to this court.
The

recommendation

has

no

presumptive

weight,

and

the

responsibility to make a final determination remains with this
court."

1993)

Estrada

v.

Witkowski,

(citing Mathews

v.

This Court ''shall make a

Weber,

815

F.

423

Supp.

U.S.

408,

261,

410

270-71

(D.S.C.

(1976)).

de novo determination of those portions

of the report or specified proposed findings or recommendations
to

which

filing

objection

of

district

is

objections

judge to

made."

to

focus

a

28

U.S.C.

magistrate's

attention on

those

§

636(b)(1).

report

enables

issues—factual

legal—that are at the heart of the parties' dispute."
Arn,

474 U.S. 140, 147

recommendation,
28 U.S.C.

§

(1985).

""'The

the
and

Thomas v.

When reviewing the magistrate's

this Court "may also receive further evidence."

636 (b) (1) .

III.

First,
treated

filed
The

Loiseau

his

action

it on the

United

LOISEAU'S OBJECTIONS

objects
as

a

forms

States

that
U.S.C.

28

for

Court

the
§

filing a

Court
2254

28

of Appeals

should

petition

U.S.C.

for

the

§

not

have

because

he

2241 petition.

Fourth Circuit

has

held that inmates may not avoid the bar on successive collateral
attacks

on

labeling.
{4th

2003) .

judgment,

''Call

mandamus,

querela,

difference.

States,

97

it

is

F.3d

a

and

motion

habeas

substance

855,

F.3d 185,

857

for

new

coram

that

nobis,
.

. the

2004)

(7th Cir.

inventive

trial,

controls."

Cir.

by

340 F.3d 200,

a

corpus .

(7th

186-87

sentences

Winestock,

prohibition,

capias,

It

359

Gramley,

convictions

See United States v.

Cir.

audita

their

arrest

coram
name

Melton

{citing

1996)).

206-07
of

vobis,

makes
v.

no

United

Thurman

Louiseau

v.

seeks

to challenge his state court convictions.^

''[C]ourts in this

district

petition

have

appropriate

concluded

procedural

that

a

vehicle

§

for

2254

^individuals

pursuant to the judgment of a State court.'"
No.

3:09cvl67,

(some

2010

internal

Virginia,

No.

WL

772811,

quotation

3:07cv00691,

at

marks

*3

(E.D.

omitted)

2008 WL 2674030

in

Va.

Mar.

*2

(E.D.

the

custody

Trisler v.

(quoting
at

is

Mahon,

3,

2010)

Huff
Va.

v.
July

^ Loiseau disingenuously suggests that he only challenges
his state post-conviction proceedings, but not his underlying
state convictions.
This is not true.
In his habeas petition,
Loiseau "claims that he is unlawfully detained because the
circuit court did not have personal nor sovereign jurisdiction
for which to prosecute him . . . ."
(Pet. 4(d).)
3

1,

2008)).

Thus,

the

Court

properly

characterized

habeas action as one pursuant to 28 U.S.C.
Next,

Loiseau

recharacterizing
procedures
(2003).

set

his

action

habeas

relief.

proceeding
Castro^ s
United

in

that

Castro

not

v.

cost

the

to

successive

v.

be

Lloyd,

359

F.3d

in

prisoner

warn-and-allow-withdrawal
States

398

at

in

following

without

erred

the

540

recharacterizing

''A captioning error

cannot

Court

United States,

for

apply

§ 2254.

the

petition

procedure

does

(citing Melton,
will

habeas

forth

Castro^ s

habeas

contends

a

any

857).

978,

U.S.
a

375

federal

applications

successive

legal

approach

F.3d

Loiseau's

not

(7th

Loiseau's

collateral

entitlement,

does

980

for

apply."

Cir.

second

so

2005)

objection

overruled.

The Report and Recommendation will be accepted and adopted.
The

action

will

Loiseau's

^^MOTION

DISCOVERY"

(ECF No.

be

dismissed

FOR

6)

ORDER

will

be

for

want

of

COMPELLIN[G]

denied.

The

jurisdiction.
DISCLOSURE

Court

will

OR

deny

a

certificate of appealability.

The

Clerk

is

directed

to

send

Loiseau

a

copy

of

Memorandum Opinion.

/s/

Robert E.

Date:

///

Richmond Virginia

Payne

Senior United States District Judge

this