“[A]buse-of-the-writ doctrine applies to section 2241 petitions; thus, a petitioner may not raise new claims that could have been resolved in a previous action.” (quoting Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008)
How later courts described this case
- “[A]buse-of-the-writ doctrine applies to section 2241 petitions; thus, a petitioner may not raise new claims that could have been resolved in a previous action.” (quoting Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008)
- affirming the district court’s order denying Gardner’s §2241 habeas petition for lack of jurisdiction
- explaining judges should give some review to every report and recommendation
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
STEVEN SANDSTROM, :
Petitioner : CIVIL ACTION NO. 3:19-0433
v. : (JUDGE MANNION)
WARDEN EBBERT, :
Respondent :
MEMORANDUM
Pending before the court is the report of Chief Magistrate Judge
Schwab, recommending that the petition for writ of habeas corpus filed
pursuant to 28 U.S.C. §2241, by petitioner Steven Sandstrom, an inmate
confined at USP-Lewisburg, be dismissed as an abuse of the writ and due to
a lack of jurisdiction to grant him the relief requested. (Doc. 12). Specifically,
Judge Schwab finds that the instant petition should be dismissed as an abuse
of the writ since petitioner’s only claim was previously dismissed in his
October 2017 §2241 habeas petition he filed in the Southern District of
Mississippi, and that petitioner’s challenge to the validity of his conviction for
tampering with a witness, in violation of 18 U.S.C. §1512, based on his claim
of actual innocence in light of Fowler v. United States, 563 U.S. 668 (2011),
should have been raised in his motion to vacate his sentence which he
previously filed under to 28 U.S.C. §2255.'
Petitioner filed objections to Judge Schwab’s report with attached
exhibits. (Doc. 12). Respondent filed a response to petitioner’s objections on
August 23, 2019. (Doc. 14).
The court will ADOPT the report and recommendation, and will
DISMISS the habeas corpus petition.
When objections are timely filed to the report and recommendation of
a Magistrate Judge, the district court must review de novo those portions of
the report to which objections are made. See 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (2011). Although the standard is de novo, the
extent of review is committed to the sound discretion of the district judge, and
the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. See Rieder v. Apfel, 115 F.Supp.2d 496, 499 (2000)
(citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see a/so
'Since the background of this case is detailed in respondent’s response
to the habeas petition, (Doc. 8), and in Judge Schwab's report, (Doc. 12), it
will not be fully repeated herein.
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010)
(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining
judges should give some review to every report and recommendation)).
Nevertheless, whether timely objections are made or not, the district court
may accept, reject or modify, in whole or in part, the findings or
recommendations made by the Magistrate Judge. See 28 U.S.C. §636(b)(1);
Local Rule 72.31.
Petitioner objects to Judge Schwab report on the grounds that he did
not previously have a chance to raise his claim of actual innocence. He also
objects to Judge Schwab’s finding that “[t]he actual innocence exception does
not apply because [petitioner] was found guilty of seven charges, but he only
argues actual innocence as to one of the charges.” He contends that under
Fowler, he should be given the opportunity to prove his innocence of all seven
charges of which he was convicted. Petitioner states that he did not previously
raise challenges to his other six convicted charges “because [he] did not know
how to do so”, and that if he was aware of how to challenge these other
convictions, as he is now, he would have raised them in his prior §2255
motion.
In her report, Judge Schwab explains that “[n]o court has invalidated
[petitioner’s other convictions] and [petitioner] does not raise a claim in this
3
case seeking to invalidate them.” She also states that “[petitioner] had an
opportunity to present an argument based on Fowler in a timely §2255 motion
but declined to do so”, and that this bars him from brining his claim under
Fowler in a §2241 petition since §2255 is not inadequate or ineffective.
After reviewing Judge Schwab's findings, the court will dismiss the
instant petition as an abuse of the writ. See Alden v. Warden, U.S.
Penitentiary Allenwood, 444 Fed.Appx. 514, 516 (3d Cir. 2011)
(“[A]buse-of-the-writ doctrine applies to section 2241 petitions; thus, a
petitioner may not raise new claims that could have been resolved in a
previous action.” (quoting Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008)).
Further, since petitioner's previous §2241 habeas petition was dismissed in
the Southern District of Mississippi and raised the same claim he raises in his
instant petition,” he must show that “the ends of justice” would be served by
the court considering his petition. See id. (“[I]n a case in which a successive
?See Sandstrom v. Martin, 2017 WL 6816553 (S.D.Miss. Nov. 13,
2017). The Mississippi District Court specifically addressed petitioner’s claim
he again raises in his instant §2241 habeas petition, |.e., he alleged that his
conviction of tampering with a witness was no longer valid in light of Fowler.
See id. at *2. The Mississippi District Court dismissed Sandstrom’s prior
§2241 petition finding that he could not meet the stringent requirements to
proceed with his claim under the savings clause “[s]Jince the Fowler decision
was available to Sandstrom before October 4, 2011, [and] his claim was not
‘foreclosed by circuit law’ at the time when it should have been raised in his
first §2255 motion.” /d. Sandstrom failed to challenge his witness intimidation
conviction in his §2255 motion he filed with the sentencing court, i.e., the
District Court for the Western District of Missouri.
petition includes a claim for relief already fully considered and rejected ... the
petitioner [must] show that ‘the ends of justice’ would be served by the court
entertaining his petition.”) (citation omitted). Here, petitioner fails to make
such a showing.
Additionally, this court lacks jurisdiction over petitioner’s §2241 habeas
petition since there are no exceptional circumstances present which render
§2255 as inadequate or ineffective, and the actual innocence exception is not
available to petitioner. See Spataro v. Warden Fort Dix FCI, 684 Fed.Appx.
117 (3d Cir. 2017) (Ҥ2255 is inadequate or ineffective to test the legality of
detention in a case where the gatekeeping provisions bar a successive
petitioner who can successfully allege actual innocence of the crime of which
he was convicted and who, at the time of his earlier §2255 motion could not
demonstrate that innocence.”); Santos v. Rectenwald, 2014 WL 1787769
(M.D.Pa. May 5, 2014) (The court held that “the actual innocence exception
to procedurally defaulted claims does not apply ‘where a petitioner is actually
innocent of only one charge or one part of his sentence other than the death
penalty.’”). As respondent states, (Doc. 14 at 5-6), “the actual innocence
exception to the procedural-default rule does not apply because Sandstrom
is only challenging the witness intimidation conviction, which is one of the
seven charges he was convicted of.” As such, “Sandstrom cannot
5
demonstrate the ‘exceptional circumstances’ that would permit habeas relief
pursuant to §2241”, since “[e]ven if Sandstrom were innocent of witness
intimidation, the fact is that he was sentenced to life in prison on other
counts.” (Id.).
Thus, since petitioner is improperly challenging his conviction and
sentence under §2241, his §2241 petition must be dismissed for lack of
jurisdiction. Gardner v. Warden Lewisburg USP, 845 F.3d 99, 104 (3d Cir.
2017) (affirming the district court’s order denying Gardner’s §2241 habeas
petition for lack of jurisdiction).
Finding no clear error of law, the court ADOPTS Judge Schwab’s report,
and OVERRULES petitioner’s objections. Petitioner’s habeas petition will be
DISMISSED. An appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: August 29, 2019
19-0433-01.wpd
6