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Rubelo Estrada v. Michael Babcock

September 28, 2012

RUBELO ESTRADA, PETITIONER,
v.
MICHAEL BABCOCK, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of habeas corpus, purportedly pursuant to 28 U.S.C. § 2241. By order filed on February 24, 2012, the parties were directed to file concurrent briefing addressing the question of whether the savings clause could be applied to allow petitioner to proceed within this court's jurisdiction under § 2241. Respondent's brief was filed on March 23, 2012. Petitioner was granted an extension of time to submit his brief and appears to have filed one on March 29, 2012; he sought an additional extension of time, which the court liberally granted, and ultimately filed what appears to be a second response on May 23, 2012. After careful consideration, the undersigned concludes that this court lacks jurisdiction to proceed in this case.

Petition

The court has previously set forth the substance of the pending petition, as follows:

Petitioner contends that the instant petition is not a challenge to the federal government's evidence [against him].*fn1 Petition, p. 2. Petitioner states that he was convicted "under the Controlled Substance[s] Act, Title 21 U.S.C. [§]§841(a)(1)*fn2 (methamphetamine), 846[]*fn3 and 843(b),"*fn4 in a trial that "commenced in 2003" in the District of Idaho and was sentenced to a term of 360 months, pursuant to 21 U.S.C. § 851.*fn5 Id., at 3. Petitioner claims that the judgment was executed in deprivation of his Fourth, Fifth, Sixth and Tenth Amendment" rights "against the backdrop of the Ninth Amendment." Id. Petitioner evidently bases this petition on the recent Supreme Court ruling, Bond v. United States, ___ U.S.___, 131 Ct. 2355 (2011), wherein the high court found that a petitioner had standing to challenge her indictment under a federal criminal statute, 18 U.S.C. § 229, prohibiting possession or use of a chemical weapon on grounds that the statute intruded upon powers reserved to the states in violation of the Tenth Amendment. Petitioner attempts to predicate his challenge on an individual right under the Tenth Amendment to challenge the federal statutes as encroaching on state sovereignity. Id., at 1-50. Petitioner indulges in a lengthy version of the history of criminal laws from pre-revolutionary times through the colonial era and the history of the Ninth and Tenth Amendments. Id. Petitioner argues that he has Article III standing to challenge the federal statutes under which he was convicted, maintains that the conduct for which he has been convicted is local and should be left to local authorities and that under Idaho law the maximum term of imprisonment to which he would be sentenced "is barely half of his federal sentence." Id., at 29-31. Petitioner argues that the federal government has overreached in federalizing crimes that have long been state or local crimes. Id., at 32- 36, citing, inter alia, United States v. Lopez, 514 U.S. 549, 551, 561 n.3. 564, 115 S. Ct. 1624 (1995); Jones v. United States, 529 U.S. 848, 858, 120 S. Ct. 1904 (2000).

Order, filed on 2/24/12, pp. 2-3.

Background

In the response, respondent references the "somewhat convoluted history" of this case but provides no copy of the docket or documents of the underlying criminal case. Respondent's brief, (hereafter, Rsp.), p. 1. The court herein takes judicial notice of the docket and electronically filed documents of petitioner's underlying Criminal Case No. 1:03-cr-094 in the District of Idaho.*fn6 The undersigned finds it helpful to place the instant petition in context by recounting the procedural background of petitioner's case as set forth in the Order, filed in the District of Idaho, on 7/03/08, dismissing petitioner's motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255.

Estrada was charged in the Indictment (Docket No. 1) in this multi-defendant case with one count of conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. The Government subsequently filed an Information Pursuant to Title 21, United States Code, § 851 Regarding Increased Punishment by Reason of Prior Convictions (Docket No. 79 in the criminal case). [Footnote] 3][*fn7 ] The Government again charged Estrada in the Superseding Indictment (Docket No. 96) with the conspiracy count. Finally, the Government filed the Second Superseding Indictment (Docket No. 144) charging Estrada with the conspiracy count and an additional ten counts of using a telephone in commission of the conspiracy offense in violation of 21 U.S.C. § 843(b). The case proceeded to trial. Prior to the submission of the case to the jury, and at the Government's request, the Court dismissed three of the telephone counts against Estrada. The jury convicted Estrada of all remaining counts. Minutes and Form of Verdict (Docket Nos. 269 and 270). Estrada moved for a new trial alleging that the Court had committed structural error by allowing unredacted transcripts of telephone conversations between Estrada and co-Defendants to be given to the jury during its deliberations even though parts of the transcripts had not been read to the jury during trial. Motion for New Trial (Docket No. 273). The Court denied the motion. Order (Docket No. 303). Estrada then objected to being sentenced pursuant to the United States Sentencing Guidelines ("USSG" or "Guidelines") and to the increase in his statutory maximum from forty (40) years to life pursuant to 21 U.S.C. § 851. Sentencing Memorandum (Docket No. 315) and Supplemental Sentencing Memorandum (Docket No. 319). Overruling the objections, the Court sentenced Estrada pursuant to 4B1.1, the Career Offender Guideline, to a term of imprisonment of 360 months to be followed by 8 years of supervised release on the conspiracy count and to terms of imprisonment of 96 months to be followed by 4 years of supervised release on each of the telephone counts, all terms to run concurrently. Judgment (Docket No. 322).

Estrada timely appealed the denial of his motion for a new trial and the alleged unconstitutional imposition of his sentence. Because, while his appeal was pending, the United States Supreme Court decided United States v. Booker, 125 S. Ct. 738 (2005), effectively rendering the United States Sentencing Guidelines advisory, Estrada requested a remand for resentencing. The Ninth Circuit affirmed his conviction but remanded the case pursuant to Booker and United States v. Ameline, 409 F.3d 1073, 1083 (9th Cir. 2005)(en banc), for the limited purpose of determining whether the Court would have imposed a materially different sentence had the Guidelines been advisory. United States v. Estrada, No. 04-30336 (9th Cir. Nov. 18, 2005)(Docket No. 361). On remand, the Court, after considering the parties' resentencing memoranda and original sentencing memoranda, declined to resentence concluding that the sentence would not have been materially different under advisory Guidelines. Order (Docket No. 368).

Estrada again timely appealed arguing that the Court failed to provide him with an "appropriate explanation" for denying resentencing. However, the Ninth Circuit affirmed the sentence determining that the sentence comported with the directives of Ameline and was reasonable. United States v. Estrada, No. 06-30148 (9th Cir. Jan. 10, 2007)(Docket No. 375). Estrada thereafter timely filed the ... § 2255 Motion alleging (1) that his sentence on the conspiracy charge was above the statutory maximum, (2) that his sentence should be re-examined in light to Rita and Cunningham, (3) ineffective assistance of trial counsel, and (4) ineffective assistance of counsel on appeal.

Criminal Case No. 1:03-cr-094 (District of Idaho), Memorandum Decision And Order, filed on 7/03/08 (docket no. 379), pp. 5-8.

As noted, petitioner's § 2255 motion was dismissed in the July 3, 2008, Order, Criminal Case No. 1:03-cr-094 (District of Idaho), referenced immediately above. Thereafter, on December 2, 2008, the Ninth Circuit denied petitioner's motion for authorization to file a second or successive § 2255 motion, because petitioner had not made "a prima facie showing" of "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 reasonable fact finder would have found" that he was "guilty of the offense," nor had he made such a showing as to a previously unavailable "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court... ...


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