Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Charles E. Wiig v. Ives

January 24, 2011

CHARLES E. WIIG, PETITIONER,
v.
IVES, RESPONDENT.



ORDER

Petitioner, a federal prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2241. He is currently confined in the federal prison in Herlong, California. He has filed an application for leave to proceed in forma pauperis and seeks appointment of counsel. The case is before the undersigned pursuant to petitioner's consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2). The petition for a writ of habeas corpus, ostensibly filed under 28 U.S.C. § 2241, contains challenges to petitioner's federal trial, conviction, and sentencing, his state court proceedings, and the conditions of his federal confinement. For the reasons explained below, the petition must be dismissed with leave to amend. See 28 U.S.C. § 2243.

A federal judge entertaining a habeas petition "shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. The petition must be dismissed if on initial review the court finds that "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing § 2254 Proceedings. An application for federal habeas relief must specify all grounds for relief, state facts supporting each ground and state the relief requested. Rule 2, Rules Governing § 2254 Cases. While this court must liberally construe the allegations of a prisoner proceeding without counsel, see Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006), the court cannot grant relief based on conclusory allegations not supported by any specific facts, Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).

I. Background

Due to the variety of issues raised by petitioner, a review of prior proceedings regarding petitioner is necessary for the court to determine the propriety of the instant petition.

Petitioner is currently serving a 262-month sentence imposed by the U.S. District Court for the District of Nebraska on November 17, 2005 after being convicted of distributing a controlled substance. Pet. at 2. He was apparently convicted of the same crime by a Nebraska state court, although the petition is less than clear as to when that conviction was sustained. Id. Petitioner states that he was sentenced by the state court in 1998 to a term of 18-24 months, but also states that his state-court appeals were dismissed in 2009, long after any 18-24 month sentence imposed in 1998 would have been served. Id.

Petitioner's appeal of his federal conviction was denied by the Eighth Circuit on August 11, 2006. Id.; United States v. Wiig, 190 Fed. Appx. 521 (8th Cir. 2006). He then filed a motion under 28 U.S.C. § 2255 with the District of Nebraska. Pet. at 4; United States v. Wiig, No. 8:05CR245, 2008 U.S. Dist. LEXIS 2814 (D. Neb. Jan. 14, 2008). In his § 2255 motion, petitioner raised the following issues:

(1) That his mother's sworn affidavit, which cast some doubt on her trial testimony identifying a voice on a police recording of a controlled drug buy as belonging to petitioner, established his actual innocence;

(2) That the trial court deprived him of his Sixth Amendment right to cross-examine adverse witnesses by admitting into evidence the written statement of a confidential informant;

(3) That trial counsel was ineffective for a variety of reasons;

(4) That sentencing counsel was ineffective for failing to communicate with petitioner prior to sentencing; and

(5) That appellate counsel was ineffective for a variety of reasons, including failing to raise all non-frivolous issues on appeal (in one particular, failing to argue that petitioner's prior state-court conviction should not have been used in the federal case (hereinafter "the prior conviction issue"). Id. at *4-13; see also Mem. of Law in Supp. of Title 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence, United States v. Wiig,No. 8:05CR245 (D. Neb.), Dckt. No. 71 (hereinafter "Pet'r's § 2255 Mot.") at 22, 31-32.*fn1

The District of Nebraska denied petitioner's § 2255 motion. Wiig, 2008 U.S. Dist. LEXIS 2814. Petitioner's request for a certificate of appealability was denied by the United States Court of Appeals for the Eighth Circuit. Wiig v. United States, No. 08-1320 (8th Cir.), orders dated August 18, 2008 (denying certificate of appealability) & October 1, 2008 (denying rehearing). Petitioner then filed a motion in the district court asking the court to respond to his argument that appellate counsel was ineffective for failing to raise the prior conviction issue. Mot. for Response, United States v. Wiig, No. 8:05CR245 (D. Neb.), Dckt. No. 99. The court denied that motion, stating that "[t]he Defendant's § 2255 motion was denied. (Filing Nos. 79, 80.). The Eighth Circuit denied a certificate of appealability. (Filing No. 84.). The United States Supreme Court denied the Defendant's petition for a writ of certiorari. (Filing No. 98.)." Order Denying Mot., United States v. Wiig, No. 8:05CR245 (D. Neb.), Dckt. No. 100. Petitioner appealed that decision, and the Eighth Circuit granted the government's motion to dismiss the appeal on the grounds that the prior conviction issue had been raised and decided in the prior appeal. United States v. Wiig, No. 09-2086 (8th Cir.), orders dated July 2, 2009 (granting motion to dismiss) & August 26, 2009 (denying rehearing). Currently pending in the Eighth Circuit is a request by petitioner to file a successive § 2255 motion, arguing that he has newly discovered that the police committed misconduct to obtain the testimony of petitioner's mother at his trial. Pet. for Permission to file a Successive Habeas Petition, Wiig v. United States, No. 10-2999 (8th Cir.), filed Sept. 10, 2010.

Petitioner then filed a petition for writ of habeas corpus, ostensibly under 28 U.S.C. ยง 2241, in the District of Nebraska. Pet. at 4; Wiig v. Ives, No. 8:10CV233 (D. Neb.). In ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.