Opinion
Civil No. 02-4068 (JRT/FLN)
October 30, 2002
REPORT AND RECOMMENDATION
THIS MATTER is before the undersigned United States Magistrate Judge on Petitioner's application for habeas corpus relief under 28 U.S.C. § 2241. Petitioner filed his habeas corpus petition in the Northern District of California, but the action was transferred to this District because Petitioner is currently confined here in Minnesota.
The case has been referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1(c). For the reasons discussed below, it is recommended that the petition for writ of habeas corpus be summarily dismissed pursuant to Rule 4 of The Rules Governing Section 2254 Cases In The United States District Courts.
Rule 4 provides that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Although The Rules Governing Section 2254 Cases are most directly applicable to habeas petitions filed by state prisoners pursuant to 28 U.S.C. § 2254, they also may be applied to habeas cases brought under 28 U.S.C. § 2241. Rule 1(b); Bostic v. Carlson, 884 F.2d 1267, 1270, n. 1, (9th Cir. 1989); Rothstein v. Pavlick, No. 90 C 5558 (N.D.Ill. 1990), 1990 WL 171789 at *3; Mickelson v. United States, Civil No. 01-1750 (JRT/SRN), (D.Minn. 2002), 2002 WL 31045849 at 2.
I. BACKGROUND
Petitioner represents that he was convicted in 1990, in the Western District of Wisconsin, for violating various federal drug laws and tax laws. (Petition, p. 2, §§ 1, 2 and 4). He received a lengthy prison sentence, (id., § 3), which he is currently serving at the Federal Correctional Institution in Waseca, Minnesota.
Following his convictions, Petitioner filed a direct appeal in the Seventh Circuit Court of Appeals. He was granted no relief on appeal, and the Supreme Court denied his subsequent petition for certiorari review.United States v. Bauer, 956 F.2d 693 (7th Cir.), cert. denied, 506 U.S. 882 (1992). Petitioner has also challenged his convictions in at least one motion brought under 28 U.S.C. § 2255, and in numerous other collateral proceedings. (Petition, pp. 2-4, §§ 9-10 and p. 6, § 14.) Evidently, all of Petitioner's previous post-conviction proceedings have been unsuccessful.
Several of Petitioner's previously unsuccessful post-conviction actions were brought in this District. Bauer v. Pitzer, Civil No. 97-2379 (JRT/JMM); Bauer v. Reno, Civil No. 00-2680 (JRT/JMM); Bauer v. Ervin, Civil No. 01-917 (JRT/JMM) (Report and Recommendation calling for summary dismissal still pending). In addition, Petitioner has recently filed yet another § 2241 petition, which is currently pending in this District. Bauer v. U.S. Attorney General, Civil No. 02-4067 (JRT/FLN).
Undeterred by his past failures, Petitioner is once again attempting to challenge his Wisconsin federal criminal convictions in his current § 2241 petition. The claims listed in his current petition are as follows: (i) "wrongful imprisonment in violation of unalienable bill of rights and other powers, privileges and immunities," (grounds one and two) (ii) "wrongful direct appeal(s) as a result of wrongful imprisonment and conviction(s)," (ground three), and (iii) "lack of jurisdiction by trial/sentencing court and 7th Circuit due to their acts in neglect to prevent violations," (ground four). (Id., pp. 4-6, § 12.)
For the reasons discussed below, the Court finds that Petitioner cannot raise any of his current claims for relief in a § 2241 habeas corpus petition. It will therefore be recommended that this action be summarily dismissed for lack of jurisdiction.
II. DISCUSSION
As a general rule, a federal prisoner can maintain a collateral challenge to his conviction or sentence only by filing a motion in the trial court pursuant to 28 U.S.C. § 2255. The fifth paragraph of § 2255 provides that
"[am 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 [i.e., § 2255], 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."
In effect, a motion brought in the trial court under § 2255 is the exclusive remedy available to a federal prisoner who is asserting a collateral challenge to his conviction or sentence. No court has jurisdiction to hear such a challenge under 28 U.S.C. § 2241 (or otherwise), unless the petitioner has affirmatively demonstrated that the remedy provided by § 2255 "`is inadequate or ineffective to test the legality of . . . [his] detention.'" DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam), quoting 28 U.S.C. § 2255; see also, Von Ludwitz v. Ralston, 716 F.2d 528, 529 (8th Cir. 1983) (per curiam).
In this case, Petitioner is clearly trying to overturn his Wisconsin federal criminal convictions. His present petition is therefore barred by § 2255's exclusive remedy rule.
In some cases, a § 2241 petition that is barred by the exclusive remedy rule can simply be construed as a motion brought under § 2255. The matter can then be transferred to the trial court so the prisoner's claims can be addressed on the merits there. In this case, however, Petitioner is precluded from seeking relief under § 2255, because he has already done so once before. Any § 2255 action that he might now attempt to pursue would have to be construed as a "second or successive" application for relief, which, under the Anti-terrorism and Effective Death Penalty Act, ("AEDPA"), could not be entertained by the trial court without the prior approval of the Circuit Court of Appeals for the circuit where Petitioner was convicted. 28 U.S.C. § 2244 (b)(3) and 2255 (final paragraph).
According to the final paragraph of 28 U.S.C. § 2255:
"A second or successive motion [under § 2255] must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."28 U.S.C. § 2244 (b)(3) provides that:
"(A) Before a second or successive application permitted 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.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.
Without a pre-authorization order from the appropriate circuit court, a trial court cannot exercise jurisdiction over a second or successive § 2255 motion. Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Because the instant Petitioner has not obtained a pre-authorization order from the Seventh Circuit Court of Appeals, the trial court could not entertain a new § 2255 motion at this time.Id. It would therefore be inappropriate to construe the present habeas corpus petition as a § 2255 motion and attempt to transfer this matter to the court in which Petitioner was convicted.
Furthermore, even if Petitioner could overcome the restrictions on successive § 2255 motions, any § 2255 proceeding pertaining to his federal criminal convictions would now be time-barred under the one-year statute of limitations prescribed by 28 U.S.C. § 2255 [¶ 6]. For this additional reason, it would not be appropriate to construe the present petition to be a § 2255 motion, and then transfer it to the trial court.
Given Petitioner's extensive experience with federal post-conviction proceedings, he must be quite familiar with the legal principles discussed above. In all likelihood, he deliberately elected to seek relief under the § 2241 habeas corpus statute, (rather than § 2255), because he knows he is not currently eligible for relief under § 2255. He may believe that his current petition is exempt from § 2255's exclusive remedy rule, and that he can challenge his convictions in a § 2241 habeas proceeding, because the remedy provided by § 2255 is "inadequate or ineffective to test the legality" of his convictions. Such reasoning, however, is clearly fallacious.
The rules barring successive § 2255 motions would be rendered meaningless if a prisoner whose claims were procedurally barred could simply argue that the remedy provided by § 2255 had become "inadequate or ineffective," and that he should therefore be allowed to bring his claims in a § 2241 habeas corpus petition or some other form of action. Congress could not have intended for the statute of limitations and the rules governing successive § 2255 motions to be so easily evaded. It is therefore not surprising that our Court of Appeals has expressly confirmed that § 2255 will not be viewed as inadequate or ineffective "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 a second or successive § 2255 motion has been dismissed, . . . or because petitioner has allowed the one year statute of limitations and/or grace period to expire." United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (citations omitted). See also United States ex rel Perez v. Warden. FMC Rochester, 286 F.3d 1059, 1061-62 (8th Cir. 2002) (reaffirming that § 2255 is not rendered inadequate or ineffective by operation of the rules limiting successive § 2255 motions), cert. denied ___ U.S. ___, (Oct. 7, 2002), 2002 WL 1404538; Mickelson v. United States, Civil No. 01-1750 (JRT/SRN), (D.Minn. 2002), 2002 WL 31045849 at *4 (same).
Similar decisions have been reached in other circuit courts that have considered this subject. See e.g., U.S. v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999) (a petition under § 2255 cannot become "inadequate or ineffective," thus permitting the use of § 2241, merely because a petitioner cannot meet the requirements for filing a second § 2255 motion); cert. denied, 528 U.S. 1176 (2000); Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999) ("the § 2255 remedy is not considered inadequate or ineffective simply because § 2255 relief has already been denied, [citations omitted], or because the petitioner is procedurally barred from pursuing relief under § 2255, [citations omitted], or because the petitioner has been denied permission to file a second or successive motion to vacate, [citation omitted]"); In re Vial, 115 F.3d 1192, 1194, n. 5 (4th Cir. 1997) ("the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision . . . or because an individual is procedurally barred from filing a § 2255 motion").
"A federal prisoner should be permitted to seek habeas corpus [under § 2241] only if 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." In re: Davenport, 147 F.3d 605, 611 (7th Cir. 1998) (emphasis added). Applying this rule here, the Court finds that Petitioner is not eligible for habeas corpus relief under 28 U.S.C. § 2241. He had a reasonable opportunity to raise his current claims for relief on direct appeal, and in his previous § 2255 motion. He cannot now claim that § 2255 is "inadequate or ineffective" simply because he is no longer eligible for relief under that statute.
III. CONCLUSION
In sum, the Court finds that: (1) Petitioner's application for habeas corpus relief challenges the validity of his Wisconsin federal criminal convictions, (2) such challenges can be raised only in a motion for relief under 28 U.S.C. § 2255, unless the remedy provided by that statute is "inadequate or ineffective;" (3) the instant petition cannot be construed as a § 2255 motion, because of the rules governing successive § 2255 motions and because of the one-year statute of limitations; and (4) Petitioner's current ineligibility for § 2255 relief does not cause the remedy provided by § 2255 to be "inadequate or ineffective" so as to excuse him from § 2255's exclusive remedy rule. Thus, the Court concludes that Petitioner's current § 2241 habeas corpus petition cannot be entertained here, and that the petition should be summarily dismissed for lack of jurisdiction. See DeSimone, 805 F.2d at 323-24 (§ 2241 habeas petition challenging judgment entered in a different district was properly dismissed for lack of subject matter jurisdiction, where petitioner had not demonstrated that § 2255 motion was an inadequate or ineffective remedy).
IV. RECOMMENDATION
Based on the foregoing, and all the files, records and proceedings herein,
IT IS HEREBY RECOMMENDED that:
This action be summarily DISMISSED for lack of jurisdiction.
Pursuant to Local Rule 72.1(c)(2), any party may object to this report and recommendation by filing with the Clerk of Court and serving all parties, within ten days after being served with a copy thereof, written objections which specifically identify the portions of the proposed findings, recommendations or report to which objection is being made, and a brief in support thereof. A party may respond to the objecting party's brief with ten days after service thereof. All briefs filed under this rule shall be limited to ten pages. A judge shall make a de novo determination of those portions to which objection is made. This Report and Recommendation does not constitute an order or judgment of the District Court, and it is therefore not appealable directly to the Circuit Court of Appeals.