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Hunt v. Matevousian

United States District Court, E.D. California

August 29, 2017

STEPHEN VINCENT HUNT, II, Petitioner,
v.
ANDRE MATEVOUSIAN, Warden, USP-Atwater, Respondent.

          FINDINGS AND RECOMMENDATION THAT COURT DISMISS CASE FOR LACK OF JURISDICTION (DOCS. 15 AND 22)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Stephen Vincent Hunt, II, is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On July 31, 2017, Petitioner filed a motion requesting that the magistrate judge prepare findings and recommendations in the above-captioned case. Review of the petition and briefing reveals that the Court lacks jurisdiction over the pending petition and can expediently resolve it through dismissal.[1] Accordingly, the undersigned recommends that the Court dismiss the petition.

         I. Procedural and Factual Background

         On December 6, 2007, a jury in the U.S. District Court for the District of Colorado convicted Petitioner of six counts of bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and six counts of possession of firearms in violation of 18 U.S.C. § 942(c). The Colorado District Court sentenced Petitioner to an aggregate term of 1764 months. Petitioner filed a direct appeal alleging violation of Batson v. Kentucky, 476 U.S. 79 (1986), and insufficient evidence. The circuit court affirmed the district court judgment, and the U.S. Supreme Court denied the petition for writ of certiorari. See United States v. Hunt, 2009 WL 175063 (10th Cir. Jan. 27, 2009) (No. 07-1518), cert. denied, 556 U.S. 1160 (2009).

         In February 2010, Petitioner filed a habeas petition under 28 U.S.C. § 2255 alleging that (1) the district court judge who presided over his trial was under investigation for judicial misconduct; (2) his rights under the Speedy Trial Act were violated; (3) the indictment was deficient; and (4) he received ineffective assistance of counsel in violation of the Sixth Amendment. United States v. Hunt, 435 Fed.Appx. 721, 723 (10th Cir. 2011). After the district court denied the petition, Petitioner filed a notice of appeal and request for a certificate of appealability in the Tenth Circuit. Id. The circuit court denied a certificate of appealability and dismissed the appeal. Id. at 726.

         In the Tenth Circuit in July 2013, Petitioner sought authorization to file a second or successive § 2255 petition to challenge the mandatory minimum sentences pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013). The circuit court held that because Alleyne did not retroactively apply to cases on collateral appeal, Petitioner did not qualify for authorization for a second or successive appeal.

         In the Colorado district court in November 2013, Petitioner filed a pleading captioned as a “motion to supplement the audita querela filing” in which he again sought relief from his sentence based on the holding in Alleyne. The district court denied the “motion, ” holding that it lacked jurisdiction because (1) Alleyne did not retroactively apply to cases on collateral appeal, and (2) the Tenth Circuit court had already refused to authorize Petitioner's filing of a second or successive petition on those grounds.

         Thereafter, Petitioner filed another “motion to supplement the audita querela filing, ” in which he sought to establish that irregularities in the jury verdict form constituted new evidence of a due process violation. The district court conceded that Petitioner's claim potentially had merit but declined to address the “motion” in the absence of an order of the Tenth Circuit Court authorizing Petitioner to pursue a second or successive petition.

         Petitioner then sought circuit court authorization to bring a second or successive motion. Noting that the irregularity in the verdict form had been noted on the court's docket since June 2007 in the form of the Clerk of Court's explanatory note, the Tenth Circuit rejected the argument that the jury form was newly discovered evidence that justified leave to file a second or successive § 2255 petition. The circuit court recited Petitioner's multiple prior appeals and petitions that failed to raise as an issue the irregularities in the jury form.

         In this Court in January 30, 2015, Petitioner filed the above-captioned petition for relief under 28 U.S.C. § 2241. The petition alleged two grounds for relief based on the irregularities in the verdict form.

         In March 2015, Petitioner sought authorization from the Tenth Circuit to file a second or successive § 2255 petition challenging the aiding and abetting instructions applicable to his § 924(c) firearms convictions. The Tenth Circuit denied authorization, finding that the motion for authorization presented no new evidence or rules of constitutional law.

         II. § 2241 Jurisdiction

         A. In General

         A federal court may not consider an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). Respondent contends that because the petition is nothing more than a disguised ยง 2255 motion and because Petitioner cannot prove the elements necessary to bring an action challenging his conviction ...


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