Opinion
CIVIL ACTION NO. 4:02-CV-749Y
April 24, 2003
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)
In this action brought by petitioner Robert S. Ortloff under 28 U.S.C. § 2241, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on February 4, 2003; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on March 5, 2003.
The Court, after de novo review, finds and determines that Petitioner's objections must be overruled, and that the petition for writ of habeas corpus should be dismissed, or alternatively, denied, for the reasons stated in the magistrate judge's findings and conclusions, and as set forth here.
Ortloff complains in the objections of the magistrate judge's failure to make recommendation on his alleged "motion for leave to incorporate verified facts delineated in the petition," "motion requesting the court to take judicial notice of the records of each legal action," "motion requesting the court to incorporate the complete administrative records maintained by the parole commission," and "motion for leave to utilize the rules of discovery." No such motions are properly before this court, however, as Ortloff buried these requests in his traverse, without reference in the title and without separately complying with the local rules of court applicable to motions. See N.D. TEX. L.Civ. R. 5.1(c) (document with more than one motion must clearly identify each in its title); N.D. TEX. L.CIV. R. 7.1 (motion practice). Notwithstanding this procedural mistake, to the extent the motions were before the court, the court would deny them.
Petitioner Robert S. Ortloff, an inmate at FMC-Fort Worth, was convicted in cause number W-86-CR-4 in the United States District Court for the Western District of Texas and sentenced to an aggregate term of 45 years imprisonment on the following charges: (1) assault with intent to commit murder by causing a bomb to be delivered in a package sent by United States mail in violation of 18 U.S.C. § 113 (a); (2) using an explosive bomb in relation to a crime of violence in violation of 18 U.S.C. § 924 (c); (3) knowingly depositing for delivery by United States mail a package containing an explosive device in violation of 18 U.S.C. § 1716 (h); and (4) knowingly endeavoring to influence the due administration of justice in violation of 18 U.S.C. § 1503. (October 3, 1986 Judgment; Appendix to Government Response (Gov. App.) at 2-3.) The conviction was affirmed on direct appeal, and Ortloff's petition for writ of certiorari was denied. Ortloff then sought relief under 28 U.S.C. § 2255, but the trial court denied that motion in an order and judgment entered in 1993. Ortloff appealed, and the court of appeals affirmed the denial of relief under § 2255. The Supreme Court denied Ortloff's petition for a writ of certiorari. Then, in February 1999, Ortloff sought leave from the court of appeals to file a successive motion under § 2255, but that motion was denied. Subsequently, Ortloff returned to the United States District Court for the Western District of Texas with a motion under Rule 60(b), but that motion was construed as a successive motion under 28 U.S.C. § 2255 and dismissed. Ortloff then sought from the court of appeals a certificate of appealability, but the court of appeals denied this request in an order filed in April 2001. Ortloff sought a writ of certiorari, which the Supreme Court denied on January 7, 2002.
The court takes judicial notice of the docket sheet records of the United States District Court for the Western District of Texas in case number W-86-CR-4.
United States v. Ortloff, 818 F.2d 863 (5th Cir. 1987) (table).
Ortloff v. United States, 484 U.S. 837 ((1987).
United States v. Ortloff, 43 F.3d 669 (1994) (table).
Ortloff v. United States, 514 U.S. 1090 (1995).
The Court takes judicial notice of the docket sheet records of the court of Appeals for the Fifth Circuit in case number 99-50165.
See supra note 1 docket no. 170.
The court takes judicial notice of the docket records of the court of Appeals for the Fifth Circuit in case number 00-51303.
Ortloff v. United States, 534 U.S. 1084 (2002).
Ortloff was also convicted in the United States District Court for the District of Arizona in case number CR 88-363-PHX-RCB in June 1989 for the offense of possession of an unregistered firearm in violation of 26 U.S.C. § 5681 (d) and 5871, and sentenced to 40 months to be served consecutive to the sentence imposed in the Western District of Texas. (Gov. App. at 004.) Ortloff did not file a direct appeal in that case and did not seek collateral relief.
In March 1999, Ortloff applied to the United States Parole Commission to be released on parole, a hearing was held, and the Commission issue a "Notice of Action" informing Ortloff that he was continued to a 15 year reconsideration hearing for April 2014, with a statutory interim hearing scheduled for April 2001. (Gov. App. at 33-40.) Ortloff filed an administrative appeal, and the National Appeals Board affirmed the determination that he was not eligible until 2014. (Gov. App. at 75.) Ortloff, then incarcerated in the Wisconsin, filed a petition under 28 U.S.C. § 2241 challenging the parole commission process, and sought a new hearing. (Gov. App. at 76-93.) The United States District Court for the Western District of Wisconsin denied the petition in an order and judgment filed in cause number 99-C-572-C on February 28, 2000, and although Ortloff filed a direct appeal, the denial of § 2241 relief was affirmed by the Court of Appeals for the Seventh Circuit. (Gov. App. at 94-107, 108-112.) Ortloff sought a writ of certiorari, and that petition was denied by the Supreme Court.
Ortloff v. O'Brien, No. 00-3396, 2001 WL 111523 (7th Cir. 2001) (unpublished-copy attached).
Ortloff v. Stiff, 123 s.ct. 678 (2002).
Just a few days after the Seventh Circuit affirmed the denial of relief under § 2241 in early February 2001, Ortloff was afforded an interim hearing by the Parole Commission on the 15 year reconsideration. The report of the hearing noted Ortloff again raised matters that went to the question of whether he was lawfully convicted, and noted that the decision for a 15 year reconsideration remained appropriate. (Gov. App. at 114.) Ortloff again appealed and by notice issued on August 1, 2001, the National Appeals Board affirmed the previous decision, expressly noted that Ortloff's claim that he was entitled to be sentenced under the sentencing guidelines was without merit, and found that he had presented no significant mitigating circumstances to warrant a different decision. (Gov. App. at 115.)
See 18 U.S.C. § 4208 (h)(2) (West Supp. 2003) (interim parole determination every 24 months for a long-term offender) ((repealed effective eighteen years after Nov. 1, 1987 by Pub.L. 107-273, Div. c, Title I, § 11017, 116 Stat. 1824 (2002).
Ortloff then proceeded to file this action under 28 U.S.C. § 2241 in the form of a 203 page petition, two separate volumes of exhibits in support, a 71 page traverse, and now in response to the magistrate judge's report, a 37 page written objection. Other than the claim enunciated as a challenge to the failure of the Parole Commission to properly appoint commissioners in 2001 and 2002 consistent with the Parole Commission Phase Out Act, the petition does not assert direct and specific challenges to actions taken by the parole commission relative to the 2001 interim hearing and appeal therefrom. Rather, all of Ortloff's other claims for relief, claims one through four and claim six, amount to matters that were raised or could have been raised in the prior § 2241 petition challenging the actions of the parole commission in the Western District of Wisconsin and as appealed to the Seventh Circuit.
Ortloff devotes many pages of his petition to rambling and unrelated allegations of FBI laboratory mistakes, press coverage of these mistakes, and the potential that such mistakes may result in the change in outcome of numerous convictions. To the extent Ortloff asserts allegations regarding the conduct of an FBI laboratory employee that worked on evidence involved in his case, he may not assert such allegation in this § 2241 proceeding, but rather must seek relief form the court of appeal to raise such challenge in a successave § 2255 motion. A motion filed under 28 U.S.C. § 2255, not § 2241, is the proper method of challenging errors that occurred during or before sentencing. See Ojo v. Immigration and Naturalization Service, 106 F.3d 680, 682 (5th Cir. 1997, citing Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990); see also Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. Unit A 1981) ("Attacks on the underlying conviction must be brought under 28 U.S.C. § 2255, not 28 U.S.C. § 2241 (c)"); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980) ("appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing").
Although the express limitation on successive attempts at collateral relief for motions under 28 U.S.C. § 2255 and for petitions under 28 U.S.C. § 2254 enacted with the Antiterrorism and Effective Death Penalty Act ("AEDPA") do not apply to § 2241 petitions, 28 U.S.C. § 2244 (a), in existence prior to the AEDPA, bars successive petitions under § 2241 directed to the same issue. That section provides:
See Zayas v. Immigration and Naturalization Service, 311 F.3d 247, 256-57 (3rd Cir. 2002); Romadine v. United States, 206 F.3d 731, 736 (7th Cir. 2000).
United States v. Tubwell, 37 F.3d 175, 177-78 (5th Cir. 1994); see also Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998) (§ 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of sentence); George v. Perrill, 62 F.3d 333, 334 (10th Cir. 1995).
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
28 U.S.C. § 2244 (a) (West Supp. 2002).
Furthermore, the abuse of the writ standard enunciated by the Supreme Court in McCleskey v. Zant, 499 U.S. 467 (1991), prior to the enactment of the AEDPA, still informs the analysis and consideration of whether a § 2241 petition is abusive:
When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom . . . [i]f petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.
Zayas, 311 F.3d at 257 (a petition under 28 U.S.C. § 2241 should be considered in the context of the abuse of the writ doctrine set forth in McCleskey v. Zant, in harmony with the AEDPA).
McCleskey, 499 U.S. at 494-95.
In the prior petition under 28 U.S.C. § 2241 challenging the 1999 determination by the United States Parole Commission, Ortloff asserted that he was denied the right to a hearing before a neutral and detached body because the Commission review process was tainted by outside influences, that the Commission did not consider a complete file on his conviction and sentence including his objections to the presentence report, that he was not provided the opportunity to submit evidence to controvert the government-witness evidence, that the Commission denied him due process of law and equal protection of the law in ruling on the basis of improper political pressure and influence of Senator John McCain and the FBI, that the standards employed by the Commission regarding parole eligibility were improperly applied retroactively in violation of the Constitution's equal protection and ex post facto protections, and that he should have been granted parole based upon an application of the law as it would have been under the Sentencing Reform Act. (Gov. App.; September 1999 § 2241 Petition at 88-91.)
In this action, Ortloff has stated six broad claims challenging the parole commission's denial of parole, in essence, he alleges that: (1) the aggravating factors relied upon to deny parole are duplicitous to those underlying his obstruction of justice conviction, constituted double counting, violated federal law, and the commission was motivated by animus and self interest, depriving him of due process and equal protection; (2) the decision to deny parole is contraindicated and mitigated by overwhelming evidence and reliable information discovered subsequent to exhaustion of judicial remedies, which constitutes exceptional circumstances justifying immediate parole; (3) the decision to affirm the 15 year reconsideration resulted from animus, self interest and impermissible intervention by Senator McCain; (4) the Commission should have given him the benefit of the Sentencing Guidelines; (5) the appointments of commissioners and personnel to the Parole Commission failed to conform to the requirements of the Constitution; (6) the denial of parole was illegal, clearly erroneous, arbitrary, capricious and an abuse of discretion, ignored the intent of Congress and the rule of parsimony, and resulted from animus and self-interest, and deprived him of due process of law and equal protection of the laws. (Pet. at 200-201).
On each claim, Ortloff alleges that the Commission's actions were either "illegal, clearly erroneous, arbitrary, capricious, excessive, an abuse of discretion, [and/or] unconstitutional [and/or] contrary to law. . . ." (Pet. at 200-201.)
After review and consideration of the claims asserted here under the applicable successive and abuse of the writ standards, this Court determines that as to claims one, two, three, four and six, Ortloff has failed to show either that the legality of his detention has not already been determined under § 2244(a), or that he can establish cause and prejudice or a fundamental miscarriage of justice will result from a failure to entertain the claims under the standards of McCleskey. Such claims must be dismissed with prejudice. Furthermore, as to claim five, and in the alternative as to claims one through four and claim six, such claims are denied on the merits for the reasons set forth in the magistrate judge's findings and conclusions at pages 9-14.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that all claims for relief in Petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2241, except for claim five, be, and they are hereby, DISMISSED WITH PREJUDICE.
It is further ORDERED that claim five, and alternatively claims one through four and claim six, be, and they are, hereby, DENIED.
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.