Opinion
Case No. 3:15-cr-26-KRG-KAP Case No. 3:19-cv-109-KRG-KAP
07-12-2019
UNITED STATES OF AMERICA v. JAMES C. FAITH, Defendant
Report and Recommendation
Recommendation
The pleading at ECF no. 28 that was docketed as a motion and referred to me should be denied.
Report
James C. Faith was prosecuted in this court at the above criminal case number for income tax evasion. He waived indictment and pleaded guilty in December 2015 and the Court sentenced petitioner on June 30, 2016 to a 24-month term of imprisonment followed by a 3-year term of supervised release, together with restitution in the amount of $1,590,605.00. There was no appeal. Faith has been released from imprisonment and is currently under supervised release.
In April 2019, Faith filed a complaint at Faith v. United States, Case No. 3:19-cv-64-KRG-KAP (W.D.Pa.), seeking a declaratory judgment that he was not subject to the federal income laws. That complaint was dismissed on June 18, 2019 and, so far, has not been appealed.
In July 2019, Faith then sent the Clerk a document styled as a "Petition for Redress of Grievances In the Nature of a Private International Administrative Remedy." Because the pleading at ¶31 through ¶33 asserts that this court "had no authority or jurisdiction over" Faith and his sentence was "void from its inception" the Clerk construed it as a motion to vacate. The Court then referred the matter to me.
Considered as a motion to vacate, Faith's pleading is untimely because it was filed well beyond the one-year limitations period in 28 U.S.C.§ 2255(f)(1), and the later accrual dates in Subsections 2255(f)(2)-(4) are not relevant.
This court cannot consider Faith's pleading as a petition for a writ of habeas corpus under 28 U.S.C.§ 2241(c)(3) because a motion to vacate a sentence pursuant to 28 U.S.C.§ 2255 is the presumptive and almost exclusive means for a federal defendant to challenge the validity of a conviction and sentence. As 28 U.S.C.§ 2255(e) states:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. In this circuit, a motion to vacate is an inadequate or ineffective remedy only when there is a new precedential interpretation of the statute under which the petitioner was convicted, that interpretation negates criminal liability for petitioner's conduct, and that interpretation has come after the time to file a motion to vacate has expired or after an unsuccessful first motion to vacate and the claim (one of substantive statutory interpretation) does not fall within the scope of 28 U.S.C.§ 2255(h)(1) or (2). See In re Dorsainvil, 119 F.3d 245 (3d Cir.1997), Abuhouran v. Grondolsky, 392 Fed.Appx. 78 (3d Cir.2010), United States v. Tyler, 732 F.3d 241 (3d Cir.2013); cf. Parker v. Warden, 596 Fed.Appx. 164 (3d Cir.2015)(rejecting the extension of Dorsainvil to an Alleyne claim.) That has not happened.
Faith's claim is not within the limited exception to the exclusivity of Section 2255 for the additional reason that it is frivolous. Faith does not claim that his guilty plea was involuntary or failed to admit all of the factual and legal elements necessary to support the judgment of guilt. As the Supreme Court stated in United States v. Broce, 488 U.S. 563, 569 (1989): 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. See also Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Since Faith does not make a claim of ineffective counsel, he is left under Broce with the one nonwaivable claim that the court lacked subject-matter jurisdiction, that is the authority to hear a given type of case. See United States v. Morton, 467 U.S. 822, 828 (1984).
Faith duly puts words in a row asserting that this court had no power to enter a conviction or impose a sentence on him, but his attack on the court's subject-matter jurisdiction is pure gobbledygook heavily interlarded with redemptionist and sovereign citizen catch-phrases. Compare Monroe v. Beard, 536 F.3d 198, 203 n.4 (3d Cir.2008) and United States v. Benabe, 654 F.3d 753, 767 (7th Cir.2011) (collecting cases). If there is any need to state it expressly, Congress has in 18 U.S.C.§ 3231 given the district courts power to adjudicate charges of income tax evasion in violation of 26 U.S.C.§ 7201 by individuals.
Faith's pleading, considered as a motion of any kind, should be denied as frivolous. Considered most appropriately as a motion to vacate, it is untimely and does not state a colorable claim. Because a certificate of appealability should not be issued to review the denial of motion to vacate unless the petitioner "has made a substantial showing of the denial of a constitutional right," 28 U.S.C.§ 2253(c)(2), no certificate of appealability should be issued.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. DATE: July 12, 2019
/s/_________
Keith A. Pesto,
United States Magistrate Judge Notice to counsel of record by ECF and by U.S. Mail to:
James C. Faith
520 Oak Lane
Tyrone, PA 16686