Opinion
Civil Action No. 05-421J.
July 11, 2006
Report and Recommendation
Recommendation
Petitioner David O'Donald, incarcerated at F.C.I. Loretto, has filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, asserting that the Eastern District of Pennsylvania did not have subject matter jurisdiction over his offense. I recommend that the petition be summarily denied without service. See 28 U.S.C. § 2243.
Report
On October 17, 1997, petitioner was sentenced in the Eastern District of Pennsylvania to 204 months imprisonment after his guilty plea to bank robbery; his sentence was later reduced to 144 months. See Report and Recommendation, June 1, 2004, inO'Donald v. Johns, C.A. No. 03-164J (W.D.Pa. June 10, 2004),aff'd, 402 F.3d 172 (3d Cir. 2005), cert. denied sub nom. Moreland v. Federal Bureau of Prisons, ___ U.S. ___, 126 S.Ct. 1906 (2006). Petitioner has filed a petition for a writ of habeas corpus, attempting to proceed under 28 U.S.C. § 2241. Petitioner asserts that no federal court had jurisdiction over the crime to which he entered his guilty plea because of what he argues is a lack of a nexus between the crime and interstate commerce. Petitioner alleges three facts to support this argument: the bank he admitted he robbed had branches only in Pennsylvania, the prosecutor merely stated but did not prove (by entering an insurance certificate into evidence) that the bank was insured by the FDIC, and the FDIC is not a federal agency. See docket no. 5, Brief for Petitioner.
Petitioner can attack his conviction, if at all, under 28 U.S.C. § 2255; he cannot proceed under Section 2241. As the Court of Appeals for the Third Circuit recently reiterated in Moore v. Dodrill, ___ F.3d ___, 2006 WL 1674103 (3d Cir. June 19, 2006):
A federal prisoner's challenge to the legality of his sentence and conviction must be raised in a § 2255 motion, except where the remedy under § 2255 would be inadequate or ineffective. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); see also Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam) (stating a § 2241 habeas petition cannot be entertained by the court unless a § 2255 motion would be inadequate or ineffective). A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates some limitation in scope or procedure which would prevent a § 2255 proceeding from affording him a full adjudication on his wrongful detention claim. See Cradle, 290 F.3d at 538 (citations omitted). Section 2255 is ineffective or inadequate where a petitioner is in the unusual position of having no prior opportunity to challenge his conviction for a crime that an intervening change in substantive law could negate with retroactive application. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). (my emphasis).
Petitioner had a prior opportunity to file a motion to vacate under Section 2255, and in fact did so. docket no. 4, Petition, ¶ 3. Petitioner also has filed petitions under Section 2241, petitions to file second or subsequent motions to vacate, and several other collateral attacks on his conviction. docket no. 4, Petition, ¶ 13A through ¶ 13I. By petitioner's own allegations, at least two of petitioner's previous attempts included attacks on the district court's subject matter jurisdiction. Before this court could even consider the merits of petitioner's claim, 28 U.S.C. § 2244(b) (3) (A) requires:
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.
The Court of Appeals for the Third Circuit has refused to consider the petitioner's subject matter jurisdiction claim because it does not meet either of 28 U.S.C. § 2255 ¶ 8's requirements for successive petitions. docket no. 4, Petition, ¶ 13I. Because repetitive filing of doomed petitions is pointless, this court should dismiss the instant petition rather than transferring it to the court of appeals for consideration under 28 U.S.C. §§ 2244 and 2255.
Even if this court could hear petitioner's claim, it is meritless. Petitioner confuses two distinct concepts, namely, the court's jurisdiction and the alleged failure of the government to prove a claim within the court's jurisdiction. The subject matter jurisdiction of the Eastern District of Pennsylvania to convict and sentence petitioner was clearly adequate: it is set out in 18 U.S.C. § 3231, which provides in relevant part:
The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. Robbery of a bank insured by the Federal Deposit Insurance Corporation is undoubtedly a federal offense. 18 U.S.C. § 2113(a), (f). Petitioner is merely asserting that in his particular instance, the prosecutor failed to place of record the facts which petitioner contends would have been necessary to prove its case at trial. That is not an attack on the court's jurisdiction. As the Court of Appeals for the Second Circuit explained:
If the indictment alleges all of the statutory elements of a federal offense and the defendant's contention is that in fact certain of those elements are lacking, the challenge goes to the merits of the prosecution, not to the jurisdiction of the court to entertain the case or to punish the defendant if all of the alleged elements are proven.
Hayle v. United States, 815 F.2d 879, 882 (2d Cir. 1987). Since the petitioner's challenge is not, despite his calling it one, a jurisdictional attack, it was waived by his entry of a guilty plea. As the Supreme Court has stated:
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.
United States v. Broce, 488 U.S. 563, 569 (1989). That the exception for defects apparent "on the face of the record" does not include claims that the prosecutor inadequately set forth the factual basis for the plea under Fed.R.Crim.P. 11, or claims that the jurisdictional basis could not be established if the matter had gone to trial can be seen from the few cases allowing collateral attacks after Broce. As the First Circuit put it, in deciding that a double jeopardy claim could be asserted despiteBroce:
In most instances, factual guilt is the only pertinent question and a guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt. A guilty plea, however, does not bar a defendant from contending that the State may not convict him no matter how validly his factual guilt is established.
Jackson v. Coalter, 337 F.3d 74, 80 (1st Cir. 2003) (internal citations and quotations omitted). In United States v. Garth, 188 F.3d 99 (3d Cir. 1999), the Court of Appeals held that the petitioner could, despite his guilty plea to a charge of "use" of a firearm under 18 U.S.C. § 924(c), assert a claim that he was actually innocent because the conduct he admitted in 1991 did not violate the statute as later interpreted in Bailey v. United States, 516 U.S. 137 (1995). Here, petitioner can point neither to a legal prohibition on the federal government making robbery of a FDIC-insured bank a crime, nor an interpretation of 18 U.S.C. § 2113 that removes banks with branches only in one state from the scope of that statute.
Recently, in United States v. Cotton, 535 U.S. 625, 630-31 (2002), the Supreme Court shed additional light on the concept of subject matter jurisdiction in criminal cases. The Court rejected the conclusion by the Court of Appeals for the Fourth Circuit that the government's failure to set forth in the indictment or prove to the jury the quantity of cocaine the defendant Cotton allegedly possessed deprived the court of subject matter jurisdiction. As a result, the circuit had ordered the district court to vacate Cotton's sentence despite his failure to assert on a timely basis the defect in the indictment. The Supreme Court reversed, holding that the concept of subject matter jurisdiction simply meant the court's power to hear a case, and that it was not destroyed by procedural or factual defects. 535 U.S. at 630-31. As a result, the Court held, alleged errors in the indictment or in the proof presented to the jury not objected to prior to or at trial would be examined under Fed.R.Crim.P. 52(b)'s plain error rule, which requires a showing of (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. 535 U.S. at 632 (citations and quotations omitted).
Here, petitioner's allegations that during his guilty plea the prosecutor failed to set forth a sufficient factual foundation for the guilty plea (more elaborate proof of FDIC insurance), and that no such factual basis could be laid (FDIC is not a federal agency, the bank had no nexus to interstate commerce because it had branches only in Pennsylvania) are insufficient to allege, much less provide factual support for, the fourth element required by Cotton. To the contrary, it would be seriously disruptive of the integrity and reputation of public proceedings to allow a guilty plea to be collaterally attacked on the basis of such questionable quibbles years after the entry of the plea.
As a final confirmation that petitioner's claim is not a jurisdictional claim, in a recent civil case, Arbaugh v. Y H Corp., ___ U.S. ___, 126 S.Ct. 1235, 1242 (2006), the Supreme Court gave yet more guidance on the meaning of subject matter jurisdiction. In Arbaugh, the Supreme Court held, 8-0, that Title VII's requirement that a defendant employer have a nexus to interstate commerce (defined by Congress as being the employment of 15 or more employees) was an element of proof, not a jurisdictional requirement, and could not be asserted after judgment by a defendant as a bar to judgment. Though it is a civil case, Arbaugh's view of jurisdiction is clearly consistent with Cotton and contrary to petitioner's argument. For petitioner's claim to succeed this court would have to hold that Arbaugh was wrongly decided, Cotton was wrongly decided, and that no claim of factual error in a plea (or at trial) could ever be waived or limited, since under petitioner's theory proof of a factual error would destroy the subject matter jurisdiction of the court. That is not the law.
Pursuant to 28 U.S.C. § 636(b) (1), the petitioner is given notice that he has ten days to serve and file written objections to this Report and Recommendation.