Opinion
Civil No. 00-1353 (JRT), Criminal No. 98-42 (JRT/JMM)
June 5, 2002
Bounthavy Sithithongtham, #80309-041, Federal Correctional Institution, Oxford, WI, petitioner pro se.
FRANK J. Magill, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 600 United States Courthouse, Minneapolis, MN, for respondent.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on petitioner Bounthavy Sithithongtham's second motion to vacate his sentence and for his immediate release from custody. Specifically, he moves under the All Writs Act, 28 U.S.C. § 1651, arguing that the enactment of Title 18 of the United States Code is unconstitutional and invalid. Petitioner also moves to dismiss the indictment for lack of jurisdiction, contending that the government failed to comply with the procedural requirements of the Interstate Agreement on Detainers Act. For the reasons that follow, both motions are denied.
BACKGROUND
On August 28, 1998, a jury found petitioner guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), 922(a)(2), and for making false statements to a licensed firearms dealer in violation of 18 U.S.C. § 922(a)(6) and 924(a)(2). On December 21, 1998, the Court sentenced petitioner to a term of imprisonment of 63 months on each count, to run concurrently. The Court also ordered that petitioner's term of imprisonment run concurrently with a state court sentence in Nobles County. Petitioner appealed his conviction, which was affirmed on October 14, 1999. United States v. Sithithongtham, 192 F.3d 1119 (8th Cir. 1999).
On July 9, 1999, while the direct appeal was pending, petitioner filed a motion for clarification of the Court's Judgment and Commitment order. On March 20, 2000, the Court granted in part petitioner's motion to the extent he requests clarification of the Judgment and Conviction order, but denied the motion in all other respects. Petitioner appealed that order and it was affirmed on April 12, 2001.
On June 12, 2000, petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging that his counsel was ineffective during the pretrial investigation and at trial. On February 21, 2001, the Court denied petitioner's motion and on September 19, 2001, the Eighth Circuit denied petitioner a Certificate of Appealability and dismissed the appeal. Petitioner now brings two additional motions to the Court, the first, for release under the All Writs Act, 28 U.S.C. § 1651, and the second, to dismiss the indictment for lack of jurisdiction.
I. Motion under the All Writs Act
Petitioner seeks release from custody under the All Writs Act pursuant to 28 U.S.C. § 1651. Specifically, he argues that because Congress was not physically in session on June 25, 1948, the date of enactment of Title 18 of the United States Code, Title 18 was not constitutionally enacted by Congress.
Petitioner's motion must be denied because Eighth Circuit caselaw clearly holds that relief under § 1651, also known as coram nobis relief, is not available to an individual currently in federal custody. United States v. Noske, 235 F.3d 405, 406 (8th Cir. 2000); United States v. Kindle, 88 F.3d 535, 536 (8th Cir. 1996). In Noske, the petitioner sought reconsideration of her sentence through a writ of error coram nobis under the All Writs Act after her petition under § 2255 was denied. The Eighth Circuit concluded that coram nobis relief was unavailable to Noske because, among other reasons:
"[T]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, not the All Writs Act, that is controlling." Carlisle v. United States, 517 U.S. 416, 429 (1996). Here, the appropriate means for Noske to challenge her sentence is § 2255. The statute is "controlling," even though she cannot obtain the relief she seeks because the statute prevents her from filing a second § 2255 petition. United States v. Barrett, 178 F.3d 34, 55 (1st Cir. 1999). "The writ of coram nobis may not be used to circumvent the clear congressional directive embodied in the `second or successive' provisions of § 2255." Id.
Id. at 406. The same result applies here. Petitioner is currently incarcerated at the Federal Correctional Institution in Oxford, Wisconsin for violating federal law. The appropriate remedy for petitioner to challenge his conviction and sentence is § 2255, not § 1651. Accordingly, petitioner's motion under § 1651 is denied. In addition, this Court cannot entertain a second or successive motion under § 2255 unless petitioner first obtains certification from the Eighth Circuit Court of Appeals. 28 U.S.C. § 2255; United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir 2000); United States v. Lemon, 2001 WL 1628651 at *2 (D.Minn. Sept. 11, 2001) ("The AEDPA's amendment of section 2255 bars second or successive habeas petitions absent exceptional circumstances and certification by the appropriate court of appeals.").
II. Motion to Dismiss
In his second motion, petitioner moves to dismiss the indictment on the basis that the federal government failed to comply with the procedural protections afforded by the Interstate Agreement on Detainers Act ("IADA"). This motion must also be denied because the IADA is inapplicable to petitioner's case. The record reveals that on April 17, 1998, the government sought and obtained a writ of habeas corpus ad prosequendum to obtain custody of petitioner for purposes of the federal prosecution. See Docket No. 2. Because a writ, rather that a detainer, was filed, the provisions of the IADA were not triggered. The Supreme Court has expressly held that a writ of habeas corpus ad prosequendum is not a detainer for purposes of the IADA and therefore does not trigger the application of the Act. United States v. Mauro, 436 U.S. 340, 360-61 (1978); see also United States v. Moore, 822 F.2d 35, 37 (8th Cir. 1987) (the IADA is inapplicable when the government secures the presence of a state prisoner by means of the writ of habeas corpus ad prosequendum without filing a detainer). In this case, as in Moore, petitioner was transferred from state to federal custody pursuant to a writ. Accordingly, the IADA is inapplicable and the motion is denied on this basis.
The decision of Alabama v. Bozeman, 533 U.S. 146 (2001), a case relied on by petitioner, is distinguishable from the case at bar. In that case, the provisions of the IADA were triggered because a detainer was lodged against the defendant. Id. at 151.
ORDER
Based on the foregoing, and all the records, files and proceedings herein, IT IS HEREBY ORDERED that:1. Petitioner's Motion for extraordinary writ pursuant to the All Writs Act established according to 28 U.S.C. § 1651 [Docket No. 90] is DENIED.
2. Petitioner's Motion to Dismiss the Indictment for Lack of Jurisdiction [Docket No. 91] is DENIED.