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Crosby v. Ives

United States District Court, C.D. California

December 3, 2014

JEFFREY ROY CROSBY, Petitioner,
v.
RICHARD IVES, Warden, U.S.P. Victorville, Respondent.

OPINION AND ORDER CHARACTERIZING FEDERAL PRISONER'S "SECTION 2241 AND 2243" PETITION AS A MOTION PURSUANT TO 28 U.S.C. § 2255; DECLINING TO TRANSFER ACTION TO SENTENCING COURT; DISMISSING ACTION WITHOUT PREJUDICE FOR LACK OF SUBJECT-MATTER JURISDICTION

VALERIE BAKER FAIRBANK, Senior District Judge.

I. BACKGROUND

Petitioner Jeffrey Roy Crosby, a prisoner in the custody of the United States Penitentiary-Victorville located in Adelanto, California, challenges a conviction in the United States District Court for the District of South Carolina (Case No. CR-96-361) by means of these proceedings. Proceeding pro se, petitioner constructively filed a "Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §§ 2241 and 2243" ("the petition") on about October 28, 2014.[1] Petitioner challenges his conviction and sentence on the ground that he is factually innocent of the charges. (Petition ¶ 9(a).) For the reasons set forth below, the Court will re-characterize the putative section 2241 / 2243 petition as a motion pursuant to 28 U.S.C. § 2255 and dismiss the action for lack of subject-matter jurisdiction.

II. PROCEDURAL HISTORY[2]

On July 26, 1996, a jury convicted petitioner of two counts of solicitation to murder a federal probation officer in violation of 18 U.S.C. §§ 373 and 1114. Petitioner was sentenced to a term of 365 months (thirty years and five months) in federal prison.

Petitioner filed a direct appeal to the U.S. Court of Appeals for the Fourth Circuit and raised the following issues: (1) the trial court erred in denying his pre-trial and pre-sentencing motions for a psychiatric examination and that the court enhancement of his criminal history category was inappropriate; (2) the wiretaps used against him were illegally obtained; (3) the wiretap tapes were unintelligible, prejudicial, confusing, misleading, and not protected against tampering; (4) the district court erred in denying his motion for acquittal on the ground of insufficiency of evidence to support the solicitation charge; (5) the district court erred in denying his motion to suppress certain statements which petitioner made on the wiretap tapes; (6) violation of the Double Jeopardy clause; (7) prosecutorial misconduct; and (8) ineffective assistance of counsel. The Fourth Circuit affirmed the conviction on April 2, 1998. The United States Supreme Court denied certiorari. Crosby v. United States, 525 U.S. 987, 119 S.Ct. 456, 142 L.Ed.2d 409 (1998).

On June 9, 1999, petitioner filed a 28 U.S.C. § 2255 habeas corpus motion. That motion raised a plethora of claims, including claims corresponding to those raised herein.

Petitioner also brought civil-rights actions pursuant to 42 U.S.C. § 1983 and the theory articulated in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against the witnesses, the prosecutor, and his counsel. The actions were dismissed. Petitioner filed other actions challenging his conviction and sentence, all of which were denied.

On November 5, 2014, petitioner filed the 11-8425 Action which was styled as "Hazel-Atlas Independent Action for Relief from Conviction and Sentence Based on Fraud upon the Court" (the "Prior Petition"). The Court construed the prior petition as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The prior petition asserted that petitioner was actually innocent of the offenses of conviction and included the following claims: (1) the Government performed "fraud on the court" by making false statements regarding the authorization for an informant to record conversations with petitioner, by making false statements that the resulting tape had not been edited, by deleting exculpatory statements made on the tape, and by presenting perjured testimony at trial; (2) defense counsel provided ineffective assistance by failing to present a defense strategy and failing to successfully contest admission of the tape recordings; and (3) the sentence constitutes a violation of petitioner's right not to be exposed to double jeopardy for the same offense. (Prior Petition at 23-32.)

Notably, all of the claims and factual allegations asserted in the instant habeas petition were previously asserted in the prior federal habeas petition.

On January 11, 2012, the Court entered judgment against petitioner in the Prior Petition, finding that the Prior Petition was a second or successive 2255 motion and that petitioner did not qualify for the "escape hatch, " which under limited circumstances permits a petitioner to file a second 2255 motion. See Jeffrey Roy Crosby v. United States, 2011 WL 6986789 (C.D. Cal. Dec. 15, 2011) (Mumm, M.J.), R&R adopted, 2012 WL 84768 (C.D. Cal. Jan. 11, 2012) (Fairbank, J.). The Ninth Circuit subsequently dismissed petitioner's appeal. ( See Docket Entry No. 17 in the Prior Petition.)

II. DISCUSSION

A. Subject-Matter Jurisdiction

"In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of [his] detention." Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). Pursuant to 28 U.S.C. § 2244(b), a petitioner may not file a second or successive § 2255 motion without first obtaining authorization from the appropriate court of appeals. See 28 U.S.C. § 2244(b)(3)(A); Moore v. Reno, 185 F.3d 1054, ...


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