Beckett v. Bauknecht et al Doc.

9
8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Timothy E. Beckett, # 14426-006, ) C/A No. 8:07-1284-HFF-BHH

)
Petitioner, )
)
vs. ) Report and Recommendation
)
Donald Bauknecht, Warden of FCI-Williamsburg; )
and )
United States of America, )
)
Respondents. )
_________________________________________

Background of this Case

This is a habeas corpus action filed pursuant to 28 U.S.C. § 2241. The

petitioner is a federal inmate at FCI-Williamsburg in Salters, South Carolina. The petitioner

has brought the above-captioned § 2241 action to challenge his three federal convictions

entered in the United States District Court for the District of Alaska in Criminal No.

A02-007-CR-JMF, wherein the petitioner was convicted, in a jury trial, of violations of 18

U.S.C. § 1951(a), § 924(c)(1), and § 924(h). On May 15, 2003, the petitioner was

sentenced to thirty-five (35) years in prison. No direct appeal was filed in the petitioner’s

criminal case.

The petitioner’s on page 2 of the petition indicate that the petitioner filed a

motion to vacate pursuant to 28 U.S.C. § 2255 (Civil Action No. 04-CV-00274-JWS

[D. Alaska]). Relief under 28 U.S.C. § 2255 was denied by the United States District Court

Dockets.Justia.com
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 2 of 11

for the District of Alaska on May 10, 2005. Information available through PACER indicates

that the petitioner’s appeal (Ninth Circuit Docket No. 05-35534) from the denial of relief

under 28 U.S.C. § 2255 was not successful. On September 13, 2005, the United States

Court of Appeals for the Ninth Circuit denied a Certificate of Appealability.

The petitioner raises three grounds in the petition: (1) petitioner’s indictment,

which charged him with violating 18 U.S.C. § 924(c)(1), did not adequately advise him of

the nature of the charge; (2) the government failed to prove an essential element under the

Hobbs Act; and (3) the trial court’s failure to instruct the jury on a key element of the

offense — “the affect on ‘commerce’” — violated the petitioner’s constitutional right to a fair

trial.1

Discussion

Under established local procedure in this judicial district, a careful review has

been made of the pro se petition and the Form AO 240 pursuant to the procedural

provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of

1996. The review2 has been conducted in light of the following precedents: Denton v.

1
Since the petitioner is challenging the sufficiency of an indictment and jury instructions,
the petitioner is expressly not raising claims under United States v. Booker, 543 U.S. 220, 160
L.Ed.2d 621, 125 S.Ct. 738, 2005 U.S. LEXIS® 628 (2005); Blakely v. Washington, 542 U.S.
296, 159 L.Ed.2d 403, 124 S.Ct. 2531, 2004 U.S. LEXIS® 4573 (2004); and Apprendi v. New
Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348, 2362-2363, 2000 U.S. LEXIS® 4304
(2000). The petitioner did attempt to raise such Sentencing Guidelines issues after his
Section 2255 motion was denied by the United States District Court for the District of Alaska.
See United States v. Beckett, 2005 W ESTLAW ® 3091886 (D. Alaska, November 16, 2005);
and United States v. Beckett, 2005 W ESTLAW ® 2205915 (D. Alaska, July 25, 2005).
2
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (DSC),
(continued...)

2
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 3 of 11

Hernandez, 504 U.S. 25, 118 L.Ed.2d 340, 112 S.Ct. 1728, 1992 U.S. LEXIS® 2689

(1992); Neitzke v. Williams, 490 U.S. 319, 324-325, 104 L.Ed.2d 338, 109 S.Ct. 1827,

1989 U.S. LEXIS® 2231 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden,

Maryland House of Correction, 64 F.3d 951, 1995 U.S.App. LEXIS® 26108 (4th Cir.

1995)(en banc), cert. denied, 516 U.S. 1177, 134 L.Ed.2d 219, 116 S.Ct. 1273, 1996

U.S. LEXIS® 1844 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v.

Alizaduh, 595 F.2d 948 (4th Cir. 1979)(recognizing the district court’s authority to conduct

an initial screening of any pro se filing);3 Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978),

cert. denied, Moffitt v. Loe, 446 U.S. 928 (1980); and Gordon v. Leeke, 574 F.2d 1147,

1151 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978). The petitioner is a pro

se litigant, and thus his pleadings are accorded liberal construction. See Hughes v. Rowe,

449 U.S. 5, 9-10 & n. 7 (1980)(per curiam); and Cruz v. Beto, 405 U.S. 319 (1972). When

a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's

allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir.

1975). Even under this less stringent standard, the § 2241 petition, which raises claims

under 28 U.S.C. § 2255, is subject to summary dismissal. The requirement of liberal

construction does not mean that the court can ignore a clear failure in the pleading to

(...continued)
the undersigned is authorized to review such complaints for relief and submit findings and
recommendations to the District Court.
3
Boyce has been held by some authorities to have been abrogated in part, on other
grounds, by Neitzke v. Williams, 490 U.S. 319 (1989)(insofar as Neitzke establishes that a
complaint that fails to state a claim, under Federal Rule of Civil Procedure 12(b)(6), does not
by definition merit sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) [formerly 28 U.S.C.
§ 1915(d)], as “frivolous”).

3
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 4 of 11

allege facts which set forth a claim currently cognizable in a federal district court. Weller

v. Department of Social Services, 901 F.2d 387, 1990 U.S.App. LEXIS® 6120 (4th Cir.

1990).

Prior to enactment of 28 U.S.C. § 2255, the only way a federal prisoner could

collaterally attack a federal conviction was through a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. See Triestman v. United States, 124 F.3d 361, 373, 1997

U.S.App. LEXIS® 22752 (2nd Cir. 1997). In 1948, Congress enacted § 2255 primarily to

serve as a more efficient and convenient substitute for the traditional habeas corpus

remedy. See In re Dorsainvil, 119 F.3d 245, 249, 1997 U.S.App. LEXIS® 18963 (3rd Cir.

1997)(collecting cases).

"[A] prisoner who challenges his federal conviction or sentence cannot use

the federal habeas corpus statute at all but instead must proceed under 28 U.S.C. § 2255."

Waletzki v. Keohane, 13 F.3d 1079, 1080, 1994 U.S.App. LEXIS® 159 (7th Cir.1994).

Since the petitioner is seeking relief from his convictions entered in the United States

District Court for the District of Alaska, the relief requested by the petitioner in the above-

captioned matter is available, if at all, under 28 U.S.C. § 2255. See United States v.

Morehead, 2000 U.S.Dist. LEXIS® 17611, 2000 WESTLAW® 1788398 (N.D.Ill.,

December 4, 2000):

Notwithstanding Bennett captioning this pleading under Federal Rule of

Criminal Procedure 12(b)(2), this court must construe it as a motion attacking
his sentence under 28 U.S.C. § 2255. Regardless of how a defendant
captions a pleading, “any post-judgment motion in a criminal proceeding that
fits the description of § 2255 ¶ 1 is a motion under § 2255....” United States
v. Evans, 224 F.3d 670, 672 (7th Cir. 2000). In the pleading at bar, Bennett
argues that the court did not have jurisdiction over his criminal case, which

4
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 5 of 11

is one of the bases for relief under § 2255 ¶ 1. Therefore, this court must
construe this motion as a § 2255 motion.

United States v. Morehead, supra.

The United States Court of Appeals for the Seventh Circuit has reached a

similar conclusion:

* * * *Many decisions in this circuit hold that substance controls over the
caption.

Any motion filed in the district court that imposed

the sentence, and substantively within the scope of § 2255 ¶
1, is a motion under § 2255, no matter what title the prisoner
plasters on the cover. See, e.g., Ramunno v. United States,
264 F.3d 723 (7th Cir.2001). Call it a motion for a new trial,
arrest of judgment, mandamus, prohibition, coram nobis,
coram vobis, audita querela, certiorari, capias, habeas corpus,
ejectment, quare impedit, bill of review, writ of error, or an
application for a Get-Out-of-Jail Card; the name makes no
difference. It is substance that controls. See Thurman v.
Gramley, 97 F.3d 185, 186-87 (7th Cir.1996).

Melton v. United States, 359 F.3d 855, 857 (7th Cir.2004) (emphasis in
original). Lloyd's motion advanced the kind of arguments and sought the kind
of relief covered by § 2255 ¶ 1. It therefore was a collateral attack, and
because we had not granted permission for its commencement the district
court was obliged to dismiss it for lack of jurisdiction. Although a
miscaptioned initial collateral attack does not count for purposes of § 2244(b)
and § 2255 ¶ 8 unless the district judge alerts the prisoner that it will use up
the one allowed as of right, see Castro v. United States, 540 U.S. 375, 124
S.Ct. 786, 157 L.Ed.2d 778 (2003), all later collateral attacks must be seen
for what they are. A captioning error in a successive collateral proceeding
cannot cost the prisoner any legal entitlement, so Castro 's warn-and-allow-
withdrawal approach does not apply. See Melton, 359 F.3d at 857.

United States v. Lloyd, 398 F.3d 978, 979-980, 2005 U.S.App. LEXIS® 3429 (7th Cir.

2005). See also United States v. Winestock, 340 F.3d 200, 2003 U.S.App. LEXIS® 7941

(4th Cir. 2003), cert. denied, Winestock v. United States, 540 U.S. 995, 157 L.Ed.2d 395,

124 S.Ct. 496, 2003 U.S. LEXIS® 7906 (2003).

5
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 6 of 11

The fact that the petitioner may be precluded from raising his three grounds

in a successive § 2255 petition does not render a § 2255 petition inadequate or ineffective.

Phillips v. Jeter, 2005 U.S.Dist. LEXIS® 2939, 2005 WESTLAW® 465160, *1-*2

(N.D.Texas, February 25, 2005)(magistrate judge’s Report and Recommendation). See

also United States v. Winestock, supra; and Rhodes v. Houston, 258 F. Supp. 546

(D. Neb. 1966).4

4
The holding in United States v. Winestock is based on longstanding case law. This
longstanding case was discussed by forty years ago by the United States District Court for the
District of Nebraska in Rhodes v. Houston:

The invulnerability to a trial court's intrusion upon, or disregard of, a judgment

or decree founded in, or supported by, an appellate mandate, is devoid of
novelty. For example, in 1897, Mr. Justice Gray in In re Potts, 166 U.S. 263,
267, 268, 17 S.Ct. 520, 521, 522, 41 L.Ed. 994, wrote:

'W hen the merits of a case have been once decided by this
court on appeal, the circuit court (by which name the trial court
was then known) has no authority, without express leave of this
court, to grant a new trial, a rehearing or a review, or to permit
new defenses on the merits to be introduced by amendment of
the answer. Ex parte Story, 12 Pet. 339 (9 L.Ed. 1108); Southard
v. Russell, 16 How. 547, (14 L.Ed. 1052); Ex parte Dubuque &
P.R. Co., 1 W all. 69, (17 L.Ed. 514); Stewart v. Salamon, 97 U.S.
361, (24 L.Ed. 1044; Gaines v. Rugg, 148 U.S. 228, 13 S.Ct.
611, (37 L.Ed. 432). In this respect a motion for a new trial or a
petition for a rehearing stands upon the same ground as a bill of
review, as to which Mr. Justice Nelson, speaking for this court,
in Southard v. Russell, above cited, said: 'Nor will a bill of review
lie in the case of newlydiscovered evidence after the publication
or decree below, where a decision has taken place on an appeal,
unless the right is reserved in the decree of the appellate court,
or permission be given on an application to that court directly for
the purpose. This appears to be the practice of the court of
chancery and house of lords, in England; and we think it founded
in principles essential to the proper administration of the law,
and to a reasonable termination of litigation between the parties
in chancery suits.''

(continued...)

6
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 7 of 11

Since the claims that the petitioner seeks to raise in the above-captioned

case are cognizable, if at all, under 28 U.S.C. § 2255, the petitioner’s available judicial

remedy is to seek leave to file a successive petition from the United States Court of

Appeals for the Ninth Circuit. Before the petitioner attempts to file another petition

regarding his sentence under 28 U.S.C. § 2255, the petitioner must seek and obtain leave

(i.e., written permission) from the United States Court of Appeals for the Ninth Circuit. The

United States District Court for the District of Alaska has already apprised the petitioner of

this requirement. See, e.g., United States v. Beckett, 2005 WESTLAW® 3091886 (D.

Alaska, November 16, 2005)(“If Mr. Beckett wishes to file a motion under 28 U.S.C.

§ 2255, he must first receive permission from the Court of Appeals for the Ninth Circuit.”).

The petitioner can obtain the form for seeking leave to file a successive

petition from the Clerk's Office of the United States Court of Appeals for the Ninth Circuit

in San Francisco, California. The Ninth Circuit form for doing so is a Form 12 (“Application

for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under

28 U.S.C. § 2255").5 The mailing address of the Clerk’s Office of the United States Court

(...continued)
Rhodes v. Houston, 258 F. Supp. at 567 (quotation downloaded from W ESTLAW ®
[unbalanced quotation marks in original]).
5
Each United States Court of Appeals has developed its own applicable form for
determining motions for leave to file a successive petition. The five-page form used by the
United States Court of Appeals for the Fourth Circuit is called a “Motion for Authorization to
File Successive Application under 28 U.S.C. § 2244.”

7
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 8 of 11

of Appeals for the Ninth Circuit is Post Office Box 193939, San Francisco, California

94119-3939.6

6
See Section 106 of the Anti-Terrorism and Effective Death Penalty Act of 1996:

(B) LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS. ) Section

2244(b) of title 28, UNITED STATES CODE, is amended to read as follows:

"(B)(1) A claim presented in a second or successive habeas

corpus application under section 2254 that was presented in a
prior application shall be dismissed.

"(2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior
application shall be dismissed unless)
"(A) the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court,
that was previously unavailable; or

"(B)(i) the factual predicate for the claim could not

have been discovered previously through the
exercise of due diligence; and
"(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable factfinder would have found the
applicant guilty of the underlying offense.

"(3)(A) Before a second or successive application permitted by

this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authorizing
the district court to consider the application.

"(B) A motion in the court of appeals for an order authorizing the

district court to consider a second or successive application shall
be determined by a three-judge panel of the court of appeals.

"(C) The court of appeals may authorize the filing of a second or

successive application only if it determines that the application
makes a prima facie showing that the application satisfies the
requirements of this subsection.
(continued...)

8
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 9 of 11

Recommendation

Accordingly, it is recommended that the § 2241 petition be dismissed without

prejudice and without requiring the respondents to file a return. See Allen v. Perini, 424

F.2d 134, 141 (6th Cir.)(federal district courts have duty to screen habeas corpus petitions

and eliminate burden placed on respondents caused by ordering an unnecessary answer

or return), cert. denied, 400 U.S. 906 (1970); Toney v. Gammon, 79 F.3d 693, 697, 1996

U.S.App. LEXIS® 5804 (8th Cir. 1996)(“However, a petition may be summarily dismissed

if the record clearly indicates that the petitioner's claims are either barred from review or

without merit.”); Baker v. Marshall, 1995 U.S.Dist. LEXIS® 4614, *2-*3, 1995 WESTLAW®

150451 (N.D.Cal., March 31, 1995)("The District Court may enter an order for the summary

dismissal of a habeas petition if it plainly appears from the face of the petition and any

exhibits annexed to it that the petitioner is not entitled to relief in this Court."); and the Anti-

(...continued)
"(D) The court of appeals shall grant or deny the authorization to
file a second or successive application not later than 30 days
after the filing of the motion.

"(E) The grant or denial of an authorization by a court of appeals

to file a second or successive application shall not be appealable
and shall not be the subject of a petition for rehearing or for a
writ of certiorari.

"(4) A district court shall dismiss any claim presented in a second

or successive application that the court of appeals has
authorized to be filed unless the applicant shows that the claim
satisfies the requirements of this section.".

Although the statute quoted above, facially, applies to petitions under 28 U.S.C. § 2254, the
final paragraph of 28 U.S.C. § 2255 makes it applicable to actions under 28 U.S.C. § 2255.

9
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 10 of 11

Terrorism and Effective Death Penalty Act of 1996. The petitioner's attention is directed

to the important notice on the next page.

Respectfully submitted,

May 23, 2007 s/Bruce Howe Hendricks

Greenville, South Carolina United States Magistrate Judge

10
 8:07-cv-01284-HFF Date Filed 05/23/2007 Entry Number 9 Page 11 of 11

Notice of Right to File Objections to Report and Recommendation

The petitioner is advised that he may file specific written objections to this
Report and Recommendation with the District Court Judge. Objections must specifically
identify the portions of the Report and Recommendation to which objections are made and
the basis for such objections. In the absence of a timely filed objection, a district court
judge need not conduct a de novo review, but instead must “only satisfy itself that there is
no clear error on the face of the record in order to accept the recommendation.” Diamond
v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).

Specific written objections must be filed within ten (10) days of the date of
service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The time calculation of this ten-day period excludes weekends and holidays and provides
for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail
pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to:

Larry W. Propes, Clerk

United States District Court
Post Office Box 10768
Greenville, South Carolina 29603
Failure to timely file specific written objections to this Report and
Recommendation will result in the waiver of the right to appeal from a judgment of
the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied,
Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841 (4th
Cir. 1985).

11