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denying appointment of counsel when court lacked jurisdiction to hear petitioner's habeas petition
Summary of this case from Norton v. United StatesOpinion
Cause No. TH00-0184-C-T/F
July 31, 2000
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
I.
The petitioner's motion for the appointment of counsel should be entered on the docket in this case. It was initially associated with the petitioner's criminal conviction, but quite evidently pertains to this case. A copy shall be sent to the petitioner.
The petitioner's motion for the appointment of counsel is denied. The reason for this ruling is that the petitioner has fully expressed his claims, has shown his awareness of the factual and legal bases for his claims, and has adequately utilized the court's processes in presenting his claims. As is demonstrated in Part II of this Entry, his claims are entirely without merit in the form presented. The assistance of counsel would not aid the petitioner. These are not circumstances suggesting that it would be in the interests of justice to appoint counsel for the petitioner. See 18 U.S.C. § 3006A(a)(2)(B) ("Whenever . . . the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section 2241, 2254, or 2255 of title 28.").
II. A.
Based upon the supplemental materials filed by the petitioner on July 14, 2000, this action is now fully poised for review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
The petitioner is not in state custody and is not attacking the judgment of a state court. However, Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides that those Rules may be applied in applications for habeas corpus in cases not brought by a person challenging the judgment of a state court at the discretion of the district court. This is an appropriate case for such application, as was Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir. 1990), and the reference to those Rules is now made explicit.
B.
Petitioner Talbott is confined at the United States Penitentiary at Terre Haute, Indiana, which is a prison located within the Southern District of Indiana. He is serving the executed portion of a sentence imposed in United States v. Richard Talbott, No. NA 94-21-CR-H/H. The records associated with his conviction-of which this court may take judicial notice-see Mandarino v. Pollard, 718 F.2d 845, 849 (7th Cir. 1983), cert. denied, 469 U.S. 830, 105 S.Ct. 116 (1984); Green v. Warden, United States Penitentiary, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436 (1983)-show that Talbott's conviction was affirmed on direct appeal in United States v. Talbott, 1997 WL 73225 (7th Cir. February 13, 1997), after an earlier remand in United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996), and that a motion for relief pursuant to 28 U.S.C. § 2255 was denied on the merits of the claims asserted in an action assigned a civil docket number of NA 97-105-C-H/S. After the resolution of the § 2255 motion, both the trial court and the Court of Appeals declined to issue a certificate of appealability.
Talbott brings the present action pursuant to 28 U.S.C. § 2241 (c)(3). This statute provides a district court to grant a petition for a writ of habeas corpus if the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." Id. Talbott claims that his custody is rendered unlawful because this court, in NA 94-21-CR-H/H, did not have jurisdiction to convict and sentence him.
A federal inmate challenging the validity of his conviction in a habeas corpus action must overcome the barrier created in 28 U.S.C. § 2255 itself. This statute provides for collateral relief from a federal conviction or sentence "upon the grounds that the sentence was imposed in violation of the constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." The same statute further provides that a habeas corpus action is not a substitute for an action under such section and "shall not be entertained if it appears that the . . . [court which sentenced him] has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." Thus, a habeas court has jurisdiction over an attack on the conviction or sentence of a federal criminal defendant only under limited circumstances.
It is improper to confuse the remedies provided for in §§ 2241 and 2255. See Atehurta v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Where there is nothing inadequate in the Section 2255 remedy, the district court of the district in which the petitioner is confined lacks jurisdiction to adjudicate claims concerning the validity of a sentence or conviction and the action must be dismissed for that reason. Id.
Section 2241 provides a vehicle for attacking "the execution, not the validity, of the sentence." United States v. Ford, 627 F.2d 807, 813 (7th Cir.), cert. denied, Ford v. United States, 449 U.S. 923 (1980). Through the Entry issued on June 26, 2000, Talbott was instructed to explain how his claims in this action could be reasonably understood as a challenge to the execution of, rather than to the validity of, the conviction and sentence entered in NA 94-21-CR-H/H.
Talbott explains the use of § 2241(c)(3) by explaining that he is challenging his confinement, not his conviction. This ostensible distinction is fatuous; the sentence results from his conviction and is a part thereof. A motion for relief pursuant to Section 2255 encompasses a challenge to the validity of a defendants "conviction" as distinct, or thought to be distinct, from the sentence related to the conviction. A claim such as Talbott presents thus falls squarely within the scope of § 2255:
A section 2255 motion must be granted if "the court was without jurisdiction to impose such sentence." 28 U.S.C. § 2255. "If the court finds that the judgment was rendered without jurisdiction, . . . the court shall vacate and set the judgment aside and shall discharge the prisoner. . . ." Id.
Levine v. United States, 2000 WL 994181, *2 (7th Cir. July 19, 2000).
In enacting the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress altered the method by which prisoners may obtain relief on a second or successive § 2255 motion. Pursuant to § 2244:
No . . . district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255."28 U.S.C. § 2244(a). Paragraph 8 of Section 2255 begins: "A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals. . . ."
The "motion" to which this language refers must be the kind of motion described by § 2255 ¶ 1 — one "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."
Valona v. United States, 138 F.3d 693 (7th Cir. 1998). The court in Valona proceeded to observe that nothing in the statutory scheme under AEDPA "implies that a federal prisoner may use a petition under § 2241 to call into question the validity of a conviction or sentence that has already been subject to collateral review." Id. "The essential point is that a prisoner is entitled to one unencumbered opportunity to receive a decision on the merits." Potts v. United States, 210 F.3d 770 (7th Cir. 2000).
In substance, therefore, this habeas petition is a second § 2255 motion. The petitioner should have followed the correct procedure before presenting it. See In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) (noting that it can't be right and would nullify the AEDPA limitations if a prisoner, prevented from obtaining relief under § 2255, could simply turn to § 2241).
C.
Talbott also defends the appropriateness of the present action by suggesting that he would not succeed in obtaining permission from the Court of Appeals to present his claims in an actual second § 2255 action. It is true that the criteria for obtaining such permission have been described as "stringent." Potts v. United States, 210 F.3d 770 (7th Cir. 2000). Anticipating defeat on that frontier, however, does not in and of itself render the § 2255 remedy either inadequate or unavailable.
By invoking § 2241(c)(3), Talbott seeks to circumvent the § 2244(b)(3)(A) procedure. That path, however, was closed in Thurman v. Gramley, 97 F.3d 185, 188-89 (7th Cir. 1996), where the Court of Appeals for the Seventh Circuit held that a § 2241 habeas petition which is in reality a second or successive action pursuant to § 2255, should be treated as the latter. This treatment is confirmed in many other situations in which a prisoner seeks to circumvent the procedure under § 2244. E.g., Calderon v. Thompson, 523 U.S. 538, 553 (1998) (noting that "a prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of § 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, § 2244(b)(1), or the bar against litigation of claims not presented in a prior application, § 2244(b)(2). If the court grants such a motion, its action is subject to [the] AEDPA"); United States v. Woods, 169 F.3d 1077 (7th Cir. 1999) (holding that a motion nominally under Fed.R.Crim.P. 33 must be treated as a petition under § 2255, because it made the arguments and sought the relief provided by § 2255); United States v. Garcia, 181 F.3d 1274, 1275 (11th Cir. 1999) (similar holding assessing prisoner's challenge through an action for coram nobis relief following an earlier § 2255 motion which had been denied on the merits); In re Gregory, 181 F.3d 713, 715 (6th Cir. 1999) (rejecting mandamus relief); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) (rejecting mandamus, coram nobis, and audita querela relief).
This means that, in appropriate cases, § 2244(b)(3)(A) must be utilized, and this is an appropriate case for that procedure.
Anyone who files a "second or successive" application must start in the court of appeals, and any effort to begin in the district court must be dismissed for want of jurisdiction. . . .
Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996). Section 2244 has been described as "self-executing." Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). This means that a district court lacks all jurisdiction over such a matter until permission to file is granted by the Court of Appeals. Id. An action over which the district court lacks jurisdiction must be dismissed. Steel Co. v. Citizens for a Better Environment, 118 S.Ct. 1003 (1998). That is precisely the disposition which is compelled in this case. This disposition is compelled entirely apart from whether Talbott has or lacks a strong case for filing a successive § 2255 motion. That is a point on which the court expresses no opinion at this point and into which it has no authority to inquire.
III.
Talbott seeks an evidentiary hearing to develop his claims. However, the record is sufficient to show without doubt that he is not entitled to relief in the form he has presented his claims and in the absence of a certification under § 2244(b) from the Court of Appeals. His petition for an evidentiary hearing is therefore denied.
IT IS THEREFORE ADJUDGED that this cause of action is dismissed for lack of jurisdiction.