Opinion
C.A. No. 00-5886 (DRD)
February 23, 2001
Rudolph Cook, Register No. 07565-054, Unit No. G-A, Federal Correctional Institution, Otisville, NY. Petitioner pro se ipso
OPINION
Rudolph Cook ("Cook") has lodged with this court an application for a writ of habeas corpus under 28 U.S.C. § 2241. For the reasons that follow, the application is denied.
PROCEDURAL HISTORY
Cook is no stranger to this court. In September 1993, a jury found Cook guilty of (i) conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371; (ii) armed robbery in violation of 18 U.S.C. § 2113; and (iii) using or carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 2(a) and § 924(c). The court sentenced Cook to an aggregate term of 147 months' incarceration.
Cook timely appealed his conviction and sentence. Cook argued on appeal that this court had erred in answering questions posed by the jury during its deliberations about the definition of the offense of using or carrying a weapon during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). These questions arose because the evidence adduced at trial showed that one Mark Brown, who pleaded guilty to certain charges stemming from the bank robbery in question and testified against Cook, had carried and brandished the firearm in question during the course of the robbery. In response to these questions, the court twice instructed the jury on the elements of aiding and abetting the commission of a federal offense under 18 U.S.C. § 2. Cook challenged these instructions on appeal, claiming that the evidence did not support the aiding and abetting conviction and that the court committed reversible error by failing to state that mere knowledge of the commission of a crime, or mere presence at a crime scene during the commission of a crime, is insufficient to create culpability for aiding and abetting the commission of a crime.
In an unpublished opinion filed on August 4, 1994, a panel of the United States Court of Appeals for the Third Circuit rejected this argument (and all of Cook's other arguments) and affirmed his conviction and sentence. The Third Circuit held that the instructions were not plainly erroneous, that Cook had waived his objections to these supplemental jury instructions, and that the evidence clearly supported Cook's conviction for having aided and abetted the commission of federal offenses.
Cook then collaterally attacked his sentence by filing a motion under 28 U.S.C. § 2255. Cook argued on his § 2255 motion that his conviction had to be overturned because the federal grand jury indictment had failed to charge him with aiding and abetting the commission of a federal offense under 18 U.S.C. § 2(a). He further argued that his conviction for having used or carried a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) had to be overturned under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), in which the Supreme Court of the United States held the government must prove active employment of a firearm in order to convict a defendant of use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c).
In an unpublished opinion filed on May 12, 1997, this court rejected these arguments and denied Cook's motion under 28 U.S.C. § 2255. The court held its jury instructions withstood scrutiny under Bailey because those instructions had required the jury to find beyond a reasonable doubt that the firearm played a role in or facilitated the commission of the bank robbery — that it had been actively employed, as Bailey requires — in order to convict Cook of having used a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The court further held that Cook's conviction under § 924(c) should be affirmed because the evidence adduced at trial pointed to no other conclusion but that the firearm was carried during the course of and in furtherance of the bank robbery. Finally, the court held that its supplemental jury instructions had been proper because the indictment clearly charged aiding and abetting under 18 U.S.C. § 2(a), and the evidence adduced at trial established overwhelmingly that Cook had aided and abetted the use and carrying of the firearm during and in relation to the bank robbery in violation of 18 U.S.C. § 2(a) and § 924(c). For these reasons, the court denied Cook's § 2255 motion with prejudice.
Cook attempted to appeal the order denying his § 2255 motion However, on October 30, 1997, a panel of the Third Circuit refused to issue the certificate of appealability required by 28 U.S.C. § 2253(c)(1)(B), for Cook had failed to make the substantial showing of the denial of a constitutional right required by 28 U.S.C. § 2253(c)(2).
Undaunted, Cook pressed on, filing a second motion collaterally attacking his sentence under 28 U.S.C. § 2255, this time in the United States District Court for the Southern District of New York. This motion was transferred to the Third Circuit. On February 18, 1999, a panel of the Third Circuit denied Cook authorization to file his second motion under 28 U.S.C. § 2244(b)(3)(C) and § 2255.
In the instant action, Cook has mounted yet another campaign: he now seeks to collaterally attack his conviction and sentence by applying to this court, for the first time, for a writ of habeas corpus under 28 U.S.C. § 2241. In the application, Cook challenges the constitutional sufficiency of the indictment that led to his conviction and sentence. His sole argument is that the portion of the indictment charging him with aiding and abetting the commission of a federal offense in violation of 18 U.S.C. § 2(a) failed to specifically state one of the essential elements of aiding and abetting, because it omitted the mens rea of willfulness that he argues must be read into the text of 18 U.S.C. § 2(a).
Cook's application was filed on November 30, 2000. On December 6, 2000, this court ordered Cook to show cause on or before January 5, 2001 why his application should not be dismissed for his failure to have obtained from a panel of the Third Circuit authorization to file a second or successive motion under 28 U.S.C. § 2244 and certification under 28 U.S.C. § 2255. Cook's response, filed on December 26, 2000, is straightforward and initially sound, but ultimately unavailing. He argues his application is not a second or successive motion requiring a panel of the Third Circuit to grant procedural authorization under 28 U.S.C. § 2244(b)(3) and substantive certification under 28 U.S.C. § 2255 ¶ 8 because it is an initial application for a writ of habeas corpus filed under 28 U.S.C. § 2241. Though Cook is correct, his application is nonetheless procedurally defective under 28 U.S.C. § 2255 ¶ 5. More importantly, his application is utterly without legal merit and must be denied.
DISCUSSION
Cook's Application for a Writ of Habeas Corpus under 28 U.S.C. § 2241 Does Not Require Authorization under 28 U.S.C. § 2244(b)(3) and § 2255
If this were Cook's third motion under 28 U.S.C. § 2255, there is no question he would have to obtain from a panel of the Third Circuit both procedural authorization to file it under 28 U.S.C. § 2244(b)(3) and certification that the substantive contents of the motion meet the requirements of 28 U.S.C. § 2255 ¶ 8. But this is not Cook's third motion under 28 U.S.C. § 2255; it is his first application for a writ of habeas corpus filed under 28 U.S.C. § 2241. As such, Cook does not need authorization from a panel of the Third Circuit to file it. Gray-Bey v. United States, 209 F.3d 986, 990 (7th Cir. 2000). Nor does Cook need substantive certification from a panel of the Third Circuit to proceed on the merits; for this requirement applies only to second or successive motions filed under 28 U.S.C. § 2255, not to applications filed under 28 U.S.C. § 2241. Compare 28 U.S.C. § 2255 ¶ 8 (1948, as amended 1996) with 28 U.S.C. § 2255 ¶ 5. Furthermore, as Cook has made no prior application for a writ of habeas corpus, his instant application is not governed by the strict procedural requirements regarding second or successive applications for the writ. 28 U.S.C. § 2244.
But Cook's application is governed by the strictures of 28 U.S.C. § 2255 ¶ 5, which reads:
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.28 U.S.C. § 2255 ¶ 5. This court, which sentenced Cook, denied him relief under 28 U.S.C. § 2255. Therefore, Cook must demonstrate that any § 2255 motion he might now file would be inadequate or ineffective to test the legality of his detention. Ibid.
Cook may not bootstrap his inability to meet the authorization requirements imposed by 28 U.S.C. § 2244(b)(3), and the certification requirements imposed by 28 U.S.C. § 2255 ¶ 8 upon second or successive motions filed under § 2255, into a showing that his remedy by § 2255 motion is inadequate or ineffective to test the legality of his detention. In re Dorsainvil, 119 F.3d 245, 251 (3rd Cir. 1997), quoted with approval in United States v. Brooks, 230 F.3d 643, 648 (3rd Cir. 2000). Instead, Cook must show that some limitation of scope or procedure prevented the former § 2255 proceeding from affording him a full hearing and adjudication of his claim of wrongful detention. Brooks, 230 F.3d at 648 (quoting United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3rd Cir. 1954)). The acid test under this formula seems to be whether Cook "had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate." In re Dorsainvil, 119 F.3d at 251, quoted in Brooks, 230 F.3d at 648 (collecting cases).
Cook Had Ample Opportunity on Appeal and in the 28 U.S.C. § 2255 Proceeding To Challenge the Sufficiency of the Indictment
The failure of a federal grand jury indictment to specifically set forth all the essential elements of the offense charged violates the Fifth and Sixth Amendments to the United States Constitution, United States v. Schramm, 75 F.3d 156, 162-63 (3rd Cir. 1996), and is a jurisdictional defect that may be raised on appeal or on collateral attack, United States v. Prince, 868 F.2d 1379, 1384 (5th Cir. 1989). However, Cook must show exceptional circumstances for this court to entertain his collateral attack on these grounds. Ibid.; see Vandersee v. United States, 321 F.2d 57, 59-60 (citations omitted). This he has failed to do. Cook posits no extraordinary circumstances that would excuse his repeated failure to challenge the sufficiency of the indictment in a pretrial motion, during trial, in a posttrial motion, on appeal, or in his original motion filed under 28 U.S.C. § 2255. He points to no limitation of scope or procedure that prevented the former § 2255 proceeding from affording him a full hearing and adjudication of his claim of wrongful detention. And he cannot point to some change in substantive law that occurred after he was sentenced and that would negate his conviction or sentence — for the case law was and is squarely against him. Cook has not shown that the § 2255 proceeding was inadequate or ineffective to test the legality of his detention. Therefore, Cook's application fails procedurally under 28 U.S.C. § 2255 ¶ 5.
The Portion of the Indictment Charging Violation of 18 U.S.C. § 2(a) Was Constitutional
As noted above, Cook's sole argument is that the portion of the indictment charging him with aiding and abetting the commission of federal offenses in violation of 18 U.S.C. § 2(a) failed to specify one of the essential elements of aiding and abetting, because it omitted the mens rea of willfulness that he argues must be read into the text of 18 U.S.C. § 2(a). But willfulness need not be expressly stated even in an indictment charging a violation of 18 U.S.C. § 2(b) — which contains an express mens rea of willfulness wholly absent from § 2(a). United States v. Krogstad, 576 F.2d 22, 28-29 (3rd Cir. 1978). A fortiori, willfulness need not be expressly stated in an indictment charging a violation of 18 U.S.C. § 2(a). Ibid. Cook's application is meritless under the controlling case law.
CONCLUSION
For the foregoing reasons, Cook's application for a writ of habeas corpus shall be denied. An appropriate order shall enter.