Opinion
Civil No. 02-4068 (JRT/FLN)
February 19, 2003
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Petitioner Frederick W. Bauer ("Bauer") has brought an application for a writ of habeas corpus under 28 U.S.C. § 2241, apparently challenging his 1990 conviction in the United States District Court for the Western District of Wisconsin. The Seventh Circuit Court of Appeals upheld Bauer's conviction on direct review, and the Supreme Court denied certiorari. United States v. Bauer, 956 F.2d 693 (7th Cir.), cert. denied, 506 U.S. 882 (1992).
Petitioner objects to a Report and Recommendation of United States Magistrate Judge Franklin L. Noel, dated October 30, 2002, that recommended Bauer's petition be summarily dismissed without prejudice. The Court has conducted a de novo review of Bauer's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge. Bauer's application for habeas corpus relief will be dismissed for lack of jurisdiction.
Petitioner's memorandum is titled "Partial Appeal." It is clear that petitioner is objecting to the Report and Recommendation, therefore the Court construes the memorandum as objections. See Local Rule 72.1(c)(2).
BACKGROUND
Bauer represents that he was convicted in the Western District of Wisconsin for violating federal drug laws. He is currently incarcerated at the Federal Corrections Institution in Waseca, Minnesota. Bauer originally filed this action in the United States District Court for the Northern District of California, and that court transferred the motion here, noting that section 2241 petitions must be filed in the district court in the jurisdiction where the prisoner is in custody.
The Magistrate Judge recommended that the petition be summarily dismissed because the petition is barred by 28 U.S.C. § 2255's "exclusive remedy" rule. The Magistrate Judge determined that the grounds of Bauer's petition show that Bauer was "once again attempting to challenge his Wisconsin federal criminal convictions." (Report and Recommendation at 2). The Magistrate Judge reasoned that such motions cannot be brought under section 2241, but must be raised in a section 2255 motion before the sentencing court.
Petitioner brought a similar motion before this Court in 1998, and again in 2001. Then, as now, the Court denied Bauer's motion, and found that the Court lacked jurisdiction under section 2255. The Court found, in an order dated May 12, 1998, that Bauer "failed to demonstrate that the remedy provided in 28 U.S.C. § 2255 — which must be presented in the District Court for the Western District of Wisconsin — is inadequate or ineffective to test the legality of his detention." (May 12, 1998 Order at 3). That Order went on to note that "[t]he fact that such a § 2255 motion was denied previously does not mean that it was an ineffective or inadequate procedural device." The Court also issued a similar Order on November 12, 2002, dismissing for lack of jurisdiction yet another petition which sought similar relief.
Petitioner "refused for fraud" the Magistrate Judge's Report and Recommendation and filed extensive objections to it. Petitioner's primary relevant objections seem to be that the Magistrate Judge did not rule on petitioner's request to proceed in forma pauperis and did not recommend that petitioner be reimbursed for fees for legal supplies necessary to file his habeas petitions (such as stamps and copies). Petitioner also raises the following issues in his objection: that the transfer from the Northern District of California was improper; that the Department of Justice, Bureau of Prisons, and Federal Courts are involved in a conspiracy to violate petitioner's Constitutional rights; that counsel should be appointed; that his commissary account be unfrozen, that the Magistrate Judge and this Court be recused; and that an eye injury be treated.
Few of petitioner's extensive objections relate to the Report and Recommendation or to the habeas petition currently before the Court. The Court therefore addresses only the jurisdictional issue, petitioner's in forma pauperis request, petitioner's request for counsel, and his request that this Court recuse.
ANALYSIS I. Jurisdiction
A prisoner wishing to challenge a federal conviction must generally bring the challenge before the sentencing court pursuant to 28 U.S.C. § 2255. See United States v. Lurie, 297 F.3d 1075, 1077 (8th Cir. 2000); Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999) (noting that challenges to imposition of sentence must be brought before the sentencing court under § 2255). There is a narrow exception to the exclusive remedy rule of section 2255. Under this "safety valve," a federal prisoner may challenge the imposition of his sentence under section 2241 only if it appears that the remedy afforded by section 2255 is "inadequate or ineffective to test the legality of his detention." United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000); DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam). A petitioner has the burden to establish that his remedy under section 2255 is inadequate or ineffective. DeSimone, 805 F.2d at 323.
"Section 2241 is not an additional, alternative or supplemental remedy to that prescribed under § 2255." Charles, 180 F.3d at 758. Indeed, "more is required than demonstrating that there is a procedural barrier to bringing a § 2255 motion." Lurie, 207 F.3d at 1077. The Eighth Circuit has held that section 2255 will not be viewed as an inadequate or ineffective remedy "merely because § 2255 relief has already been denied, . . . or because petitioner has been denied permission to file a second or successive § 2255 motion . . . or because petitioner has allowed the one year statute of limitations and/or grace period to expire." Lurie, 207 F.3d at 1077 (citations omitted).
Bauer raised nothing in his initial habeas petition, or in his objections to indicate that his petition falls within this narrow "safety valve." Specifically, he did not show that he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion. See In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Therefore, this Court does not have jurisdiction to entertain his motion, and accordingly it is dismissed for lack of jurisdiction.
The Court will not construe this motion as a § 2255 motion and transfer the motion because petitioner has already sought relief pursuant to § 2255, and he has not obtained the requisite permission from the Seventh Circuit Court of Appeals to proceed with a second or successive petition. See Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996).
II. In forma pauperis
Petitioner failed to complete an application to proceed in forma pauperis, therefore, his objection that the Magistrate Judge failed to address that application is specious. Even if petitioner had filed the appropriate application, however, this Court would deny the request, because petitioner has failed to state a habeas claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).III. Appointment of Counsel
Petitioner has asked the Court to appoint counsel to assist him in this civil case. Section 3006A(a)(2)(B) of Title 18 of the United States Code provides that the Court may appoint counsel for any financially eligible person who seeks relief under § 2254 and other habeas corpus statutes if the Court determines that the interests of justice so require. The Court also has the power to appoint counsel for defendant under 28 U.S.C. § 1915, which provides that a "court may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1).
Where the petitioner has presented only claims that are clearly without merit, the district court should dismiss the case without appointing counsel. Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990). In this case, the Court has determined that it lacks jurisdiction to hear petitioner's case and that the habeas petition is without merit. The appointment of counsel would not assist petitioner or this Court, and is therefore denied. See Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986) (listing factors district court should consider when granting or denying request for appointment of counsel).
IV. Recusal
A Court should recuse itself from a matter if it is shown that the Court has a personal bias or prejudice arising from an extrajudicial source. Rossbach v. United States, 878 F.2d 1088, 1089 (8th Cir. 1989) (citing United States v. Jones, 801 F.2d 304, 312 (8th Cir. 1986)). "Decisions on recusal or disqualification motions are committed to the district court's sound discretion." Larson v. United States, 835 F.2d 169, 172 (8th Cir. 1987) (citations omitted). In this case, petitioner has made no showing that the Court was biased because of an extrajudicial source, and the Court finds no basis to recuse itself.
ORDER
Based on the foregoing, the submission of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES petitioner's objections [Docket No. 5] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 4].
IT IS HEREBY ORDERED that Bauer's petition for writ of habeas corpus under 28 U.S.C. § 2241 is DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.