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Jerecki v. Milusnic

United States District Court, C.D. California

April 29, 2014

THOMAS JERECKI, Petitioner,
v.
L.J. MILUSNIC, Warden, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

On March 5, 2014, Petitioner filed a "Memorandum of Law in Support of Petitioner's Motion to Petition for a Writ of Habeas Corpus, Pursuant to 28 U.S.C. §2255 By a Person in Federal Custody" ("Petition"). The petition challenges Petitioner's 1998 career offender sentence of 262 months. Petitioner received this sentence in the United States District Court for the Southern District of West Virginia upon pleading guilty to conspiracy to possess with intent to distribute and to distribute methamphetamine. See United States v. Thomas Jerecki, United States District Court for the Southern District of West Virginia case number 6:98-CR-00111-1.[1] The Petition appears to contend that: (1) Petitioner was not informed, prior to his plea, that he would receive a career offender sentence; (2) the sentencing court failed to impose a three point sentence reduction for acceptance of responsibility; and (3) Petitioner's counsel allegedly rendered ineffective assistance at sentencing by assertedly: (a) failing to contest the career offender sentence; and (b) failing to seek a sentence reduction for acceptance of responsibility. Petitioner also requests an order holding the Petition in abeyance pending the hoped-for passage of certain proposed federal legislation.

Petitioner previously challenged his sentence on direct appeal to the United States Court of Appeals for the Fourth Circuit. See United States v. Jerecki, 199 F.3d 1329, 1999 WL 982048 (4th Cir. 1999) (unpublished disposition). In this appeal, Petitioner argued: (1) Petitioner assertedly was not informed, prior to the plea, that he faced a career offender sentence; and (2) Petitioner allegedly was entitled to a three point reduction for acceptance of responsibility. See Petition, p. 6; see also Brief of Appellant Thomas Jerecki filed August 17, 1999, in United States Court of Appeals for the Fourth Circuit case number 98-4917, reproduced at 1999 WL 33614323. The Court of Appeals for the Fourth Circuit rejected Petitioner's arguments and affirmed the sentence. See United States v. Jerecki, 199 F.3d 1329, 1999 WL 982048 at *1.

In 2000, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. section 2255 in the United States District Court for the Southern District of West Virginia.[2] On June 6, 2001, a Magistrate Judge issued proposed findings and recommended the denial of the motion. On September 21, 2001, the District Court issued an Order adopting the Magistrate Judge's findings and denying the motion. The United States Court of Appeals for the Fourth Circuit affirmed this denial, and the United States Supreme Court denied certiorari. See United States v. Jerecki, 30 Fed.App'x 97 (4th Cir.), cert. denied, 537 U.S. 848 (2002).

DISCUSSION

A federal prisoner who contends that his or her conviction or sentence is subject to collateral attack "may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. "Generally, motions to contest the legality of a sentence must be filed under § 2255, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Hernandez v. Campbell , 204 F.3d 861, 864 (9th Cir. 2000) (citations and footnote omitted). A prisoner generally may not substitute a habeas petition under 28 U.S.C. section 2241 for a section 2255 motion.

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; see Stephens v. Herrera , 464 F.3d 895, 897-99 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. Campbell , 204 F.3d at 864. Here, it appears Petitioner has applied for, and has been denied, section 2255 relief in the sentencing court.

"Under the savings clause of § 2255, however, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under section 2255 is inadequate or ineffective to test the legality of his detention.'" Hernandez v. Campbell , 204 F.3d at 864-65; see also Stephens v. Herrera , 464 F.3d at 897. This "savings clause" exception to section 2255 exclusivity is a "narrow" exception. Ivy v. Pontesso , 328 F.3d 1057, 1059-60 (9th Cir.), cert. denied, 540 U.S. 1051 (2003); United States v. Pirro , 104 F.3d 297, 299 (9th Cir. 1997).

Mere lack of success in the sentencing court does not make the section 2255 remedy "inadequate or ineffective." Boyden v. United States , 463 F.2d 229, 230 (9th Cir. 1972), cert. denied, 410 U.S. 912 (1973); see Tripati v. Henman , 843 F.2d 1160, 1162-63 (9th Cir.), cert. denied, 488 U.S. 982 (1988). If the rule were otherwise, every disappointed prisoner/movant incarcerated in a district different from the sentencing district could pursue a repetitive section 2241 petition in the district of incarceration.

Similarly, neither the enforcement of the statute of limitations nor the enforcement of restrictions on successive 2255 motions renders the section 2255 remedy "inadequate or ineffective" within the meaning of the statute. See Moore v. Reno , 185 F.3d 1054, 1055 (9th Cir. 1999), cert. denied, 528 U.S. 1178 (2000) (dismissal of a prior section 2255 motion as successive does not render the section 2255 remedy "inadequate or ineffective"); Gilbert v. United States , 640 F.3d 1293, 1308 (11th Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1001 (2012) (dismissal of earlier section 2255 motion as successive does not render the section 2255 remedy "inadequate or ineffective"); Hill v. Morrison , 349 F.3d 1089, 1092 (8th Cir. 2003) ("a § 2255 motion is not inadequate or ineffective' merely because: (1) § 2255 relief has already been denied, (2) the petitioner has been denied permission to file a second or successive § 2255 motion, (3) a second or successive § 2255 motion has been dismissed, or (4) the petitioner has allowed the one year statute of limitations and/or grace period to expire.") (citations, internal brackets and quotations omitted); Cradle v. U.S. ex rel. Miner , 290 F.3d 536, 539 (3d Cir. 2002) ("Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255") (citations omitted); Robinson v. United States , 2011 WL 4852499, at *2 (C.D. Cal. Oct. 12, 2011) (savings clause does not apply merely because the statute of limitations "now prevents the courts from considering a section 2255 motion"); cf. Ivy v. Pontesso , 328 F.3d at 1060 ("[I]t is not enough that the petitioner is presently barred from raising his claim... by motion under § 2255. He must never have had the opportunity to raise it by motion.").

A federal prisoner may file a section 2241 petition under the savings clause if the prisoner "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Marrero v. Ives , 682 F.3d 1190, 1192 (9th Cir. 2012), cert. denied, 133 S.Ct. 1264 (2013) (citation and internal quotations omitted). "[T]o establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States , 523 U.S. 614, 623 (1998) (citation and quotations omitted). "Actual innocence means factual innocence, not mere legal insufficiency.'" Id. at 1193 (quoting Bousley v. United States , 523 U.S. at 623) (internal brackets omitted).

Petitioner pled guilty to the charged offense. The present Petition challenges the sentence he received. Petitioner's purely legal arguments that he assertedly was wrongly classified as a career offender and denied an acceptance of responsibility reduction do not demonstrate actual innocence. See Marrero v. Ives , 682 F.3d at 1193-95 (claim that petitioner was wrongly classified as a career offender did not entail a claim of actual innocence; noting cases in other circuits holding that a petitioner generally cannot assert a cognizable claim of actual innocence of a noncapital sentencing enhancement); Chavez v. United States, 2013 WL 5924377, at *3 (N.D. Ohio Oct. 31, 2013) (challenge to sentencing court's failure to award a reduction for acceptance of responsibility did not show actual innocence).

Petitioner also fails to satisfy the "unobstructed procedural shot" prong of the savings clause analysis. "In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, we ask whether petitioner's claim did not become available' until after a federal court decision." Harrison v. Ollison , 519 F.3d at 960 (citation omitted). "In other words, we consider: (1) whether the legal basis for petitioner's claim did not arise until after he had exhausted his direct appeal and first § 2255 motion'; and (2) whether the law changed in any way relevant' to petitioner's claim after that first § 2255 motion." Id . (citation omitted). Here, nothing prevented Petitioner from previously raising his present claims in his section 2255 motion in the Southern District of West Virginia, [3] and it does not appear that any aspect of the applicable law materially changed thereafter.[4]

Petitioner contends that his previous efforts to seek relief where hindered by the alleged failure of prison officials at Petitioner's place of incarceration to give Petitioner an "important motion" ("Document #24") assertedly filed in one of Petitioner's cases. Petitioner does not provide or describe this document, and it is unclear in what court the document supposedly was filed. The Court has reviewed the online dockets of Petitioner's criminal case, his appeal to the Fourth Circuit, his petition for certiorari in the United States Supreme Court, his earlier section 2255 motion and his appeal from the denial of that motion. With one exception, none of these dockets reflects the existence of any "Document 24."[5] The exception is the criminal case docket, in which Document 24 is Petitioner's executed guilty plea, filed September 1, 1998. In light of the records of which this Court has taken judicial notice, it is manifest that Petitioner previously had an "unobstructed procedural shot" at asserting his claims, regardless of any alleged interference by prison officials.

In sum, the savings clause does not apply in the present case. Therefore, the Petition is a section 2255 motion over which this Court lacks jurisdiction.[6]

A court lacking jurisdiction of a civil action may transfer the action to a court in which the action could have been brought, provided the transfer is "in the interest of justice." 28 U.S.C. § 1631; see Cruz-Aguilera v. I.N.S. , 245 F.3d 1070, 1074 (9th Cir. 2001). "Normally transfer will be in the interest of justice because normally dismissal of an action that could be brought elsewhere is time consuming and justice-defeating." Id. at 1074 (citations and quotations omitted).

In determining whether to transfer an action, the Court must consider whether the action would have been timely had the action been filed in the proper forum. See Taylor v. Soc. Sec. Admin. , 842 F.2d 232, 233 (9th Cir. 1988). It may well be that the applicable one-year statute of limitations bars the present action, given the fact that Petitioner's direct appeal concluded in 2002. In any event, the Court should not transfer this action because, for a separate reason, a transfer would be an idle act. As in Crosby v. United States, 2011 WL 6986789 (C.D. Cal. Dec. 15, 2011), adopted, 2012 WL 84768 (C.D. Cal. Jan. 11, 2012), and Scott v. Ives, 2010 WL 295786 (E.D. Cal. Jan. 13, 2010, a transfer to the district of conviction would not benefit the petitioner because the district of conviction would be unable to entertain the matter. The United States District Court for the Southern District of West Virginia could not entertain this "second or successive" section 2255 motion absent Fourth Circuit authorization. See 28 U.S.C. § 2244, 2255(h).

Finally, Petitioner should be aware that his remedies, if any, for errors allegedly committed by the United States District Court for the Southern District of West Virginia lie with the Fourth Circuit and the United States Supreme Court, not with this Court. See Application of Pierce , 246 F.2d 902 (9th Cir. 1957); see also Wallace v. Willingham , 351 F.2d 299, 300 (10th Cir. 1965) (remedy for error committed in section 2255 proceeding "does not lie in this [sic] habeas corpus proceedings. Habeas is not an additional, alternative or supplemental remedy. Nor is it available to review judgments in 2255 proceedings"). As summarized above, Petitioner previously sought and obtained review of his sentence in the Fourth Circuit. See United States v. Jingles , 702 F.3d 494, 498 (9th Cir. 2012), cert. denied, 133 S.Ct. 1650 (2013) ("when a matter has been decided adversely on appeal from a conviction, it cannot be litigated again on a section 2255 motion") (citation omitted); Feldman v. Henman , 815 F.2d 1318, 1322 (9th Cir. 1987) ("habeas corpus review in district court does not extend to matters already decided by [the circuit court]."); see also United States v. Dyess , 730 F.3d 354, 360 (4th Cir. 2013), pet. for cert. filed (Feb. 4, 2014) (No. 13-8645) ("it is well settled that Dyess cannot circumvent a proper ruling... on direct appeal by re-raising the same challenge in a § 2255 motion.'") (citations omitted). Whether Petitioner can secure further review of his sentence pursuant to section 2255 is for the Fourth Circuit to decide in the first instance.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's request for abeyance; and (3) denying and dismissing the Petition without prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.


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