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Luedtke v. Lake

United States District Court, E.D. California

September 2, 2019

JAMES LUEDTKE, Petitioner,
v.
S. LAKE, Respondent.

          ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         BACKGROUND

         On 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).[1] 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 The Seventh Circuit Court of Appeals affirmed the conviction in an unpublished decision.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.

         On May 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).

         On May 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.)

         Having 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 actions.

         DISCUSSION

         A 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 U.S.C. ...


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