Opinion
CIV-23-905-HE
02-01-2024
DAVID L. SPALDING, Petitioner, v. ADMINISTRATIVE OFFICES OF THE U.S. COURTS, et al., Respondents.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a pro se federal prisoner, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (Doc. 1). United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 6). For the reasons stated below, the undersigned recommends that the Petition be DISMISSED WITHOUT PREJUDICE and all pending motions be DENIED AS MOOT.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
I. Screening
The Court must review habeas petitions and summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
II. Procedural History
On October 8, 2014, in the Northern District of Texas, Petitioner was charged by superseding indictment with two counts of wire fraud, one count of mail fraud, two counts of false testimony under oath, and two counts of bankruptcy fraud - false statement. United States v. Spalding, No. 3:13-CR-422-M, at Doc. 33 (N.D. Tex.). The prosecution agreed to dismiss one count of bankruptcy fraud - false statement. Id. at Doc. 93. Following a jury trial, Petitioner was convicted of all six remaining counts. Id. at Doc. 174. Petitioner was sentenced to 180 months in the Federal Bureau of Prisons. Id. at Doc. 282. Petitioner appealed his conviction and sentence, and the Fifth Circuit Court of Appeals affirmed. Id. at 332; United States v. Spalding, 894 F.3d 173 (5th Cir. 2018).
Petitioner has filed numerous motions and petitions for habeas relief in the United States District Court for the Northern District of Texas. See e.g., Spalding v. Johnson Cnty. Sheriff, No. 3:23-CV-284-M-BH, at Doc. 2 (N.D. Tex.); Spalding v. Warden of FCI El Reno, No. 3:23-CV-961-M-BH, at Doc. 2 (N.D. Tex.). However, he has not filed a petition for a writ of habeas corpus under 28 U.S.C. § 2255. See United States v. Spalding, No. 3:13-CR-422-M (N.D. Tex.).
III. The Instant Petition
On September 15, 2023, Petitioner filed with this Court the instant “Application for Relief via a Writ of Habeas Corpus - Under 28 U.S.C § 2241 with the [] 28 U.S.C. § 2255(e) - Savings Clause Inconjunction [sic] with a Motion Under 18 U.S.C. § 4001(a)” (Doc. 1) and a supporting “Memorandum of Law for the Facts Presented, and the Relief Requested” (Doc. 2, “Memorandum”). Petitioner is currently confined at the Federal Corrections Institution in El Reno, Oklahoma (“FCI El Reno”). (Doc. 1, at 8).
In the Petition, Petitioner states that:
In this novel argument theory, the Movant attacks the [Federal Public Defender] attorneys and the [Administrative Office of the U.S. Courts] Director, and their Constitutional authority, and he continues his assault on how BOTH the Jury and Court, in his criminal Jury Trial in 2015 had any type of jurisdiction - at all - either ‘subject-matter or competent jurisdiction' when - according to statute - § 2671 - certain parties - the FPD attorneys were devoid of ‘standing,' as required for any Jury or Court.(Id. at 5). In the Memorandum, Plaintiff expands on his challenge to the “standing” of the
Assistant Federal Public Defenders appointed to represent him in his criminal case:
[T]he Federal Public Defenders attorneys are ‘principal officers' who were never properly appointed, as such....
While this is becoming more granular, the FPD attorneys aren't really properly appointed as ‘inferior officers,' after one carefully reviews the lack of statutory vesting by Congress, of such authority to a Circuit Court of Appeals.
(Doc. 2, at 12). Plaintiff similarly challenges the appointment of the Director of the Administrative Office of the U.S. Courts, whom he alleges exercises “exclusive supervision” over the Federal Public Defenders. (Id. at 13).
Petitioner twice moved to supplement his Petition, (Docs. 12, 16), which the undersigned granted, (Doc. 18). In Petitioner's first Supplement, he expands on his arguments regarding the alleged Appointment Clause violations. (Doc. 13). In his second Supplement, Petitioner “argues that the Federal Public Defendants [sic], and the named parties in his original Writ and Motion, including the Adm. Off. of the U.S. Courts, are in explicit violation of the Appropriations Clause of the Constitution” because “FPD attorneys are paid as ‘tenured' Government employee's [sic], by the Adm. Off. of the U.S. Courts” despite being “neither a ‘employee of the Government' - NOR a ‘civil service or inferior officer.'” (Doc. 16, at 2). Petitioner also alleges that this “appropriation of funding to pay the FPD attorney's [sic]” violates the non-delegation doctrine and the separation of powers doctrine. (Id. at 2-3).
Petitioner's requested relief is for the Court to “vacate his criminal sentence, and for [Petitioner] to be tried via a Jury, with Constitutionally appointed actors.” (Doc. 1, at 8).
IV. Analysis
A federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States” may file a motion to “vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “This motion must be filed in the district court where sentence was imposed.” Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016) (internal quotation marks omitted); see Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (“[A] federal prisoner's attempt to attack the legality of his conviction or sentence generally must be brought under [28 U.S.C.] § 2255, and in the district court that convicted and sentenced him.”).
“A § 2255 motion is ordinarily the only means to challenge the validity of a federal conviction following the conclusion of direct appeal. But in rare instances, a prisoner may attack his underlying conviction by bringing a § 2241 habeas corpus application under the ‘savings clause' in § 2255(e).” Hale, 829 F.3d at 1165 (internal citations and quotation marks omitted); see Prost, 636 F.3d at 581 (explaining that “§ 2241 petitions, brought in the district where the prisoner is confined, are generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement”). The savings clause provides:
An application for a writ of habeas corpus [(§ 2241)] in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section [(§ 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 [(§ 2255)] is inadequate or ineffective to test the legality of his detention.Hale, 829 F.3d at 1165 (quoting 28 U.S.C. § 2255(e)). “The application must be brought in the district where the prisoner is confined.” Id. (internal quotation marks omitted).
By arguing that his criminal trial was “conducted in violation of the Constitution, [requiring] a ‘new Jury Trial' with properly appointed members,” (Doc. 2, at 20), Petitioner clearly challenges the validity of his conviction and not the execution of his sentence. Thus, Petitioner's claim is generally only cognizable under a Section 2255 motion filed in the district court that convicted and sentenced him - the United States District Court for the Northern District of Texas. Prost, 636 F.3d at 581.
As discussed above, in order to proceed under Section 2241 in this District, he must establish that “the § 2255 remedial mechanism is ‘inadequate or ineffective to test the legality of his detention.'” Prost, 636 F.3d at 580 (quoting § 2255(e)). It is the petitioner's burden to show that the Section 2255 remedy is inadequate or ineffective. Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013).
Section 2255 has been found to be inadequate or ineffective only in extremely rare and limited circumstances, such as the abolition of the original sentencing court; the sentencing court's refusal to consider, or inordinate delay in considering, the § 2255 motion; and the inability of a single sentencing court to grant complete relief when sentences have been imposed by multiple courts. This is because § 2255(e)'s saving clause is concerned with process - ensuring the petitioner an opportunity to bring his argument - not with substance - guaranteeing nothing about what the opportunity promised will ultimately yield in terms of relief.Jones v. Goetz, 712 Fed.Appx. 722, 727 (10th Cir. 2017) (internal citations and quotation marks omitted). Thus, “[t]he relevant measure . . . is whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion. If the answer is yes, then the petitioner may not resort to the savings clause and § 2241.” Prost, 636 F.3d at 584. Absent such a showing, “the court lacks jurisdiction to consider the petition on the merits.” Jameson v. Samuels, 555 Fed.Appx. 743, 746 (10th Cir. 2014).
Nowhere in the Petition, Memorandum, or supplements does Petitioner explain why a petition for habeas relief under Section 2255 would be inadequate or ineffective to test the legality of his conviction. Furthermore, none of the “rare and limited circumstances” outlined in Jones apply to Petitioner's case. The court that sentenced Petitioner - the United States District Court for the Northern District of Texas - has not been abolished, has not refused to consider or been delayed in considering a Section 2255 habeas petition, and does not lack the ability to grant complete relief to Petitioner, as it was the only court that sentenced Petitioner. See Jones, 712 Fed.Appx. at 727. Though Petitioner has filed multiple documents construed by the Northern District of Texas District Court as habeas petitions under Section 2241, see Section II, supra, Petitioner has not filed a Section 2255 habeas petition in the Northern District of Texas and fails to allege a circumstance preventing him from doing so. If Petitioner seeks to challenge the constitutionality of his conviction, he must file a Section 2255 petition in the court that convicted and sentenced him - not a Section 2241 petition in this District.
“[W]hen a federal petitioner fails to establish that he has satisfied § 2255(e)'s savings clause test - thus, precluding him from proceeding under § 2241 - the court lacks statutory jurisdiction to hear his habeas claims.” Abernathy, 713 F.3d at 557 (citing 28 U.S.C. § 2255(e) (“An application for a writ of habeas corpus . . . shall not be entertained . . . unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”)). As such, the undersigned recommends dismissal of the Petition without prejudice. Id. at 558.
V. Pending Motions
Pending before the Court are four motions filed by Petitioner: “Petitioners Seventh Amendment Right/ Demand for a Jury Trial” (Doc. 17), “Motion for Leave of the Court to Amend #4 and for Motion to Supplement Docketed Filings #4” (Doc. 19), “Notice of Clarification” (Doc. 20), and “Motion for Clarifications and Motion for Return Service Upon Defendants” (Doc. 21). Because the undersigned recommends dismissal of this action, Petitioner's pending motions are DENIED AS MOOT.
VI. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that the Petition for habeas relief (Doc. 1) be DISMISSED WITHOUT PREJUDICE.
The court advises the Petitioner of his right to object to this Report and Recommendation by February 22, 2024, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The court further advises the Petitioner that failure to make timely objection to this report and recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.