United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
is in the custody of the Bureau of Prisons at the United
States Penitentiary in Atwater, California. He filed the
instant federal petition on July 30, 2019, challenging his
conviction pursuant to 28 U.S.C. § 2241. Because
Petitioner does not satisfy the savings clause in 28 U.S.C.
§ 2255 which would allow him to challenge his conviction
by way of § 2241, the Court will recommend that the
instant petition be DISMISSED for lack of jurisdiction.
December 13, 2002, Petitioner was convicted by jury trial in
the United States District Court for the Eastern District of
Wisconsin for bank robbery, brandishing a firearm during a
crime of violence, possession of a firearm by a felon, and
two counts of making false statements to obtain a firearm.
United States v. Luedtke, No. 1:03-cr-00037-WCG
(E.D. Wis. 2003). Petitioner was sentenced to thirty-seven
years in prison. Id. He appealed, claiming the trial
court had erred in denying his motion to suppress evidence
obtained as a result of a search. United States v.
Luedtke, No. 04-1216 (7th Cir. 2005). The Seventh
Circuit Court of Appeals affirmed the conviction in an
unpublished decision. Id.
2, 2005, Petitioner filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255.
Luedtke v. United States, No. 1:05-cv-00489-WCG
(E.D. Wis. 2005). Petitioner raised claims concerning the
search of his apartment. Id. He also claimed:
he was denied a fair trial because he was unable to call
necessary witnesses, the jury was informed he was on parole
at the time of the search, the government was allowed to call
a witness not previously disclosed, witnesses were allowed to
maintain confidentiality concerning their current addresses,
irrelevant evidence was admitted, the trial judge was biased,
and police tampered with and/or planted evidence. He claims
he was denied his right to the effective assistance of
counsel both at trial and on appeal, the jury included no
minorities and was prejudiced against him (even though
Luedtke is white), he was denied his right to a speedy trial,
the discovery provided was censored and inadequate, he was
sentenced under a faulty sentencing scheme, and the United
States Court of Appeals for the Seventh Circuit was biased
and denied him due process in affirming his conviction.
Id. (Doc. 5 at 1-2.) On May 23, 2005, in a reasoned
decision, the court denied the § 2255 motion for failure
to state a claim. Id. (Doc. 5.) The court stated:
The plain fact is that Luedtke has already fully litigated
his Fourth Amendment claim on appeal. He cannot simply
continue to raise it after it has been clearly rejected.
United States v. Taglia, 922 F.2d 4l3, 418 (7th Cir.
1991). The Seventh Circuit thoroughly discussed and rejected
Luedtke's claim that the evidence seized from the
apartment should have been suppressed. Having found that the
initial consent by Hillestad was valid, the Seventh Circuit
had no need to address the question of whether Luedtke was
still on parole at the time of the search. It is simply not
relevant, given the finding of consent for the entry.
The issue has been decided and fully reviewed. Luedtke is not
entitled to further review now.
Id. (Doc. 5 at 4-5.) The sentencing court noted that
with respect to his ineffective assistance of counsel claim,
Petitioner had elected to represent himself and was
specifically warned that by waiving his right to counsel, he
would be waiving his right to effective assistance of
counsel. Id. (Doc. 5 at 6.) The sentencing court
summarily dismissed the remaining claims as conclusory.
Id. (Doc. 5 at 7.) Petitioner appealed, and the
Seventh Circuit denied the appeal, finding no substantial
showing of a constitutional right. See Luedtke v. United
States, No. 05-2905 (7th Cir. 2006).
7, 2012, Petitioner filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 in the United States
District Court for the Eastern District of Kentucky. See
Luedtke v. Berkebile, No. 7:11-cv-00080-HRW (E.D. Ky.
2011). On January 3, 2012, the Kentucky District Court
dismissed the petition for lack of jurisdiction. Id.
(Doc. 14.) Specifically, the court found that Petitioner
failed to satisfy the savings clause in § 2255.
Petitioner's claims concerned alleged errors that
occurred at or prior to sentencing, and Petitioner either
knew or should have known of them at the time he filed his
§ 2255 motion in the sentencing court. Id.
(Doc. 14 at 9-10.) Petitioner also failed to show that he was
actually innocent of the underlying conviction. Rather, his
claims concerned legal insufficiency. Id. (Doc. 14
at 10-11.) Petitioner appealed, and the Sixth Circuit Court
of Appeals affirmed judgment on September 27, 2012.
Id. (Doc. 18.)
been unsuccessful in the Wisconsin and Kentucky District
Courts, as well as the Sixth and Seventh Circuits, Petitioner
now brings this habeas petition in this Court, again
challenging his conviction. He raises 28 claims, most if not
all of which were previously raised in the aforementioned
federal prisoner who wishes to challenge the validity or
constitutionality of his federal conviction or sentence must
do so by way of a motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Tripati v.
Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); see
also Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.
2006), cert. denied, 549 U.S. 1313 (2007). In such
cases, only the sentencing court has jurisdiction.
Tripati, 843 F.2d at 1163. Generally, a prisoner may
not collaterally attack a federal conviction or sentence by
way of a petition for a writ of habeas corpus pursuant to 28