Katapodis v. United States

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREGORY JOHN KATOPODIS,

Petitioner,

v. Case No. 2:24-cv-8016-CLM

(2:08-cr-418-CLM-GMB)

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION

Gregory John Katopodis moves to vacate, set aside, or otherwise correct

his sentence under 28 U.S.C. § 2255. (Doc. 1). For the reasons explained below,

the court WILL DISMISS this action WITHOUT PREJUDICE for lack of

jurisdiction.

BACKGROUND

1. Katopodis’ conviction: On July 1, 2009, a jury found Katopodis guilty

of four counts of honest services mail fraud and 92 counts of honest services

wire fraud. (See Doc. 58 in Case No. 2:08-cr-418). The court sentenced

Katopodis to a term of 46 months’ imprisonment and 36 months’ supervised

release. (Doc. 101 in Case No. 2:08-cr-418). Katopodis appealed his conviction

and sentence, and the Eleventh Circuit affirmed. (Doc. 120 in Case No. 2:08-

cr-418). On October 31, 2011, the Supreme Court denied Katopodis’ petition

for writ of certiorari. (Doc. 123 in Case No. 2:08-cr-418).

2. 2255 motions: Katopodis filed his first § 2255 motion on October 29,

2012. (See Doc. 1 in Case No. 2:12-cv-8047). The court denied Katopodis’ motion

and did not issue a certificate of appealability. (Docs. 18 & 19 in Case No. 2:12-

cv-8047). The court also denied Katopodis’ motion to reconsider. (Docs. 22 & 23

in Case No. 2:12-cv-8047). Katopodis filed his second § 2255 motion on May 14,

2024. (Doc. 1, p. 85).

DISCUSSION

1. Venue: In his second § 2255 motion, Katopodis asks the court to

transfer this case to the District Court for the District of Massachusetts. A

motion to vacate, set aside, or correct a sentence must be filed in the “court

which imposed the sentence.” 28 U.S.C. § 2255(a). So this district has exclusive

jurisdiction over Katopodis’ motion, and the court cannot transfer the motion

to the District of Massachusetts. See Owensby v. Clark, 451 F.2d 206, 207–09

(5th Cir. 1971).

Katopodis also suggests that no judge in this district could be impartial

in ruling on his motion. A judge must recuse himself “in any proceeding in

which his impartiality might be reasonably questioned.” 28 U.S.C. § 455(a). He

must also recuse if “he has personal bias or prejudice” against a party. 28

U.S.C. § 455(b). I was not a judge when Katopodis was convicted and

sentenced, nor did I even reside in this district at the time. And I have no extra-

judicial knowledge of Katopodis or his criminal case. So I find that there is no

reason for me to recuse from ruling on Katopodis’ motion.

2. Jurisdiction: Having reviewed Katopodis’ motion and the record, the

court finds that it lacks jurisdiction over Katopodis’ motion for two reasons.

First, this is not Katopodis’ first § 2255 motion. And Katopodis must obtain

authorization from the Eleventh Circuit to file a second or successive motion

before this court can consider the motion. See 28 U.S.C. §§ 2255(h),

2244(b)(3)(A). Nothing in the record suggests that Katopodis has received this

authorization. Thus, the court finds that it lacks jurisdiction to consider the

merits of Katopodis’ motion.

Second, only a “prisoner in custody under sentence of a [federal] court”

may file a § 2255 motion. See 28 U.S.C. § 2255(a). According to the Bureau of

Prisons, Katopodis was released from BOP custody on November 2, 2012. See

https://www.bop.gov/inmateloc/. Katopodis’ 36-month term of supervised

release has also expired. See United States v. Brown, 117 F.3d 471, 475 (11th

Cir. 1997) (Person serving term of supervised release is “in custody” under §

2255(a)). Because Katopodis “suffers no present restraint” from his federal

conviction, he does not satisfy the “in custody” requirement for filing a § 2255

motion. See Maleng v. Cook, 490 U.S. 488, 492 (1989).

CONCLUSION

For these reasons, the court will DISMISS WITHOUT PREJUDICE

Katopodis’ motion to vacate, set aside, or correct his sentence (doc. 1) for lack

of jurisdiction and close this case.

Rule 11 of the Rules Governing § 2255 Proceedings requires the court to

“assue or deny a certificate of appealability when it enters a final order adverse

to the applicant.” See Rule 11, Rules Governing § 2255 Proceedings. The court

may issue a certificate of appealability “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this showing, a “petitioner must demonstrate that a

reasonable jurist would find the district court’s assessment of the

constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 4738,

484 (2000), or that “the issues presented were adequate to deserve

encouragement to proceed further,” Miller-El v. Cockrell, 587 U.S. 322, 336

(2008) (internal quotations omitted). The court finds that Katopodis’ claims fail

to satisfy either standard. So to the extent that dismissal of this case requires

the court to rule on the certificate of appealability issue, the court will not issue

a certificate of appealability.

The court will enter a separate final order that carries out this ruling

and closes this case.

Done on June 20, 2024.

ny MAZE :

UNITED STATES DISTRICT JUDGE