Opinion
CIVIL ACTION NO. 10-117-DLB.
January 6, 2011
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff Douglas Brandon, an inmate confined at the Federal Prison Camp in Ashland, Kentucky, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2255 (Doc. # 2). Respondent is the Warden of FPC Ashland. The Court did not issue process in this case pending preliminary screening. Petitioner has also filed motions seeking release from federal custody (Docs. # 3 and 5), a motion to correct his earlier motion for release (Doc. # 4), and a most recent motion for expedited consideration of his petition and a hearing on his request for release (Doc. # 8). Having reviewed the petition and motions, the Court denies the relief sought because Petitioner's claims are neither cognizable in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, nor pursuant to 28 U.S.C. § 2255(e).
By way of this Memorandum Opinion and Order, the Court grants Petitioner's motion for expedited consideration of his petition (Doc. # 8). However, because Petitioner has failed to show that the savings clause contained in 28 U.S.C. § 2255(e) applies to enable him to proceed in this court by way of a § 2241 habeas petition, his request for an expedited hearing (Doc. # 8) is denied.
II. Background
Petitioner was convicted on June 26, 2003 in the United States District Court for the Southern District of New York of one (1) count of conspiracy to commit securities fraud and wire fraud in violation of 18 U.S.C. § 371, two (2) counts of securities fraud in violation of 15 U.S.C. § 78j(b) 78ff, and 17 C.F.R. § 240.10b-5, and four (4) counts of wire fraud in violation of 18 U.S.C. § 1343 and 1346. On June 1, 2005, Petitioner was sentenced to concurrent terms of ninety-seven months on the securities fraud counts, and sixty months on the conspiracy and wire fraud counts, to run concurrently with the other counts, for a total sentence of ninety-seven months ( Id.) Petitioner's conviction was affirmed by the Second Circuit Court of Appeals on April 23, 2008. See United States v. Rittweger, 524 F.3d 171, 178 (2d Cir. 2008) (Sotomayor, J.), cert. denied, 129 S.Ct. 1391 (2009).
Thereafter, Petitioner filed a post-conviction challenge to his conviction in the Southern District of New York by filing a motion to vacate his conviction pursuant to 28 U.S.C. § 2255. On August 26, 2010, Petitioner filed a supplement to his § 2255 motion wherein he raises the identical Skilling issues raised in his § 2241 habeas petition filed in this court. A copy of that supplement is attached hereto as an appendix. Petitioner's § 2255 motion and supplement remain pending in that Court.
In his petition, Petitioner raises a number of challenges which can only be characterized as collateral challenges to the veracity of the evidence used against him at trial in New York. Those challenges include questions about the credibility of Richard Blech, including allegations in a Dutch lawsuit filed by Blech wherein he apparently recants much of his trial testimony. At pages 6 and 7 of his Verified Petition, Petitioner acknowledges raising the same credibility issues in his § 2255 motion as in his instant petition. A review of the § 2255 motion and Petitioner's reply brief confirm that fact.
Petitioner also alleges in his Verified Petition that the Supreme Court's recent decision in Skilling v. United States, 130 S.Ct. 2896 (2010) "exonerates [him] as a matter of law because there was no honest service fraud on [his] part." As previously indicated, Petitioner has also raised that identical issue in his supplement to his § 2255 motion in the Southern District of New York.
III. Analysis
It is well settled that a federal inmate must challenge the legality of his conviction and/or sentence by filing a post-conviction motion under 28 U.S.C. § 2255 with the trial court. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). In this case, Petitioner has filed such a motion as well as a supplement to that motion with the trial court. Both the fully ripe motion and supplement are pending before that court. Although petitions for writ of habeas corpus filed under 28 U.S.C. § 2241 are typically used to challenge the execution of inmate's sentence, a federal prisoner may file a petition under § 2241 to challenge the legality of his conviction and sentence if he can satisfy the mandates of the savings clause of § 2255.
The savings clause of § 2255 provides a narrow exception to the general rule and permits a prisoner to challenge the legality of his conviction through a § 2241 habeas petition where his remedy under § 2255 "is inadequate or ineffective" to test the legality of his detention. Petitioner bears the burden of showing that his remedy under § 2255 is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). Petitioner cannot make the required showing here.
First and foremost, Petitioner has a pending, ripe § 2255 motion in the trial court wherein he has raised the very same issues he is attempting to raise in this court via § 2241. The fact that the motion and supplement are pending does not make his remedy under § 2255 inadequate or ineffective. Secondly, because the presiding trial judge in the Southern District of New York is intimately familiar with the trial testimony Petitioner alleges has been eviscerated due to Mr. Blech's recent alleged recantation, principles of comity and judicial economy dictate his challenge be heard by that court.
The only recognized situation in the Sixth Circuit where a prisoner may take advantage of the savings clause in § 2255(e) is where, after his conviction has become final, the Supreme Court re-interprets the terms of the statute petitioner was convicted of violating in such a way that petitioner's actions did not violate the statute. Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003) ("A prisoner who can show that an intervening change in the law establishes his actual innocence can invoke the savings clause of § 2255 and proceed under § 2241."); Lott v. Davis, 2004 WL 1447645, *2 (6th Cir. 2004) (unpublished disposition). The Fifth Circuit has also recognized this actual innocence exception. Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005) (the savings clause in § 2255 applies to a claim of actual innocence (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal or first § 2255 motion).
At first blush this actual innocence exception would seem to provide Petitioner an opportunity to utilize the savings clause set forth in § 2255(e) to challenge his conviction via his § 2241 habeas petition. However, Petitioner conveniently ignores the fact that he has the very same challenge pending in the trial court in the Southern District of New York. Petitioner also would have the Court ignore the fact that he was also convicted of two substantive counts of securities fraud which do not appear to be impacted in any way by the Skilling decision.
In Skilling, the Supreme Court held that 18 U.S.C. § 1346 (the "honest services" fraud statute) criminalizes only bribery and kickback schemes, i.e., fraudulently depriving another of one's honest services by accepting bribes or kickbacks. Skilling, 130 S.Ct. at 2933. In this case, in addition to the conspiracy count and four wire fraud counts, Petitioner was also convicted of two securities fraud counts. Thus, while the Supreme Court's holding in Skilling may provide a basis for some relief on certain counts, Skilling does not appear to provide any relief on the two substantive securities fraud counts.
Having failed to establish that his remedy in the Southern District of New York under § 2255 is inadequate or ineffective, Petitioner's claims do not fall within the savings clause of § 2255(e). Accordingly, Petitioner is not entitled to relief in this Court under § 2241 and his verified petition will be dismissed without prejudice for want of jurisdiction.
Accordingly, IT IS ORDERED as follows:
1. The verified petition for writ of habeas corpus (Doc. # 2) be dismissed for lack of jurisdiction;
2. The motion for release (Doc. # 3) be, and is hereby denied;
3. The corrected motion for release (Doc. # 4) be, and is hereby denied;
4. The supplemental motion for immediate release (Doc. # 5) be, and is hereby denied; and
5. The motion to expedite (Doc. # 8) is granted to the extent it requests expedited consideration of the petition, and denied to the extent it seeks an expedited hearing.
This 6th day of January, 2011.
Application To Supplement 2255 Habeas Corpus Petition — FRCVP 15(d)
Douglas C. Brandon Register No. 51312-054 (A-1) Al Federal Correctional Institution Satellite Camp P.O. Box 6000 Ashland, Kentucky 41105-6000 August 13, 2010 Hon. John G. Koeltl, Judge United States District Court Southern District of New York United States Courthouse 500 Pearl Street, Courtroom 12B New York, New York 10007 Re: Douglas Colliver Brandon v. United States of America Case No. 09 Civ. 7720 (JGK) (S.D.N.Y.) Your Honor:Consistent with your protocol and FRCVP 15(d), I apply for your permission to supplement my above referenced Petition as follows:
Counts 5, 6, 7 and 8 of my conviction were for 18 USC 371 conspiracy to commit wire fraud and honest services fraud, 18 USC 1343 and 1346, identical to offenses analyzed by the U.S. Supreme Court in Skilling v. United States, No. 08-1394 (June 24, 2010). The Court held:
Because the indictment alleged three objects of the conspiracy — honest services wire fraud, money-or-property wire fraud and securities fraud — Skilling's conviction is flawed. See Yates v. United States, 354 U.S. 298. (Yates: "In these circumstances, we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.")
The Skilling Court further held as to Section 1346:
Because reading the statute to proscribe a wider range of offensive conduct would raise vagueness concerns, the Court holds that Section 1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law. Pp. 41-45.
I was not charged with bribery or kickback ( see J C attached).
. . . (f)urther dispelling doubt on this point is the principle that `ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.' Cleveland v. United States, 531 U.S. 12, 25.Skilling adds further, very compelling grounds to my Habeas Petition, submitted August 21, 2009. I reiterate my plea to vacate my conviction, to advance my case on your docket, and issue an Order for my release forthwith.