Petition for Writ of Certiorari — Virgil Hall, Petitioner v. Rodney Chandler, Warden

Case: 17-10466 Document: 00514111626 Page: 1 Date Filed: 08/10/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10466

VIRGIL HALL,

Petitioner—Appellant,

versus

RODNEY CHANDLER,

Respondent—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

This panel granted the appellee's motion to dismiss the appeal as frivolous. The appellant's motion for reconsideration is DENIED.

Case: 17-10466

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Document: 00514083329 Page: 1 Date Filed: 07/21/2017

1pL

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10466

VIRGIL HALL,

Petitioner—Appellant,

versus

RODNEY CHANDLER,

Respondent—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the appellee's opposed motion to dismiss the

appeal as frivolous is GRANTED.

IT IS FURTHER ORDERED that the appellee's alternative motion to

extend the time to file his brief is DENIED as unnecessary.

0

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

§

§

VIRGIL HALL,

Petitioner,

VS.

RODNEY W. CHANDLER, Warden,

FCI-Fort Worth,

Respondent

§

§

§

§

§

§

§

Civil Action No. 4:16-CV-256--Y

OPINION AND ORDER

's "Common Law Writ

Before the Court is petitioner Virgil Hall

of Habeas Corpus Pursuant to Rule 81(a)

(4)," construed as a

petition for a writ of habeas corpus under

28 U.S.C. § 2241. After

ht by Petitioner, the

having considered the petition and relief soug

ld be dismissed for lack

Court has concluded that the petition shou

of jurisdiction.

I. Factual and Procedural Background

Petitioner is serving a 120-month term of

imprisonment on his

2011 conviction in the Central District of

Utah for possession with

intent to distribute cocaine. (J., United

States v. Virgil Hall,

150.) In 2015, while

Case No. 2:10-cr-1109-TS-1, ECF No.

ania, Petitioner was

incarcerated at FCI--Loretto in Pennsylv

ns, apparently resulting

charged with various disciplinary violatio

es. (Pet. 3-4, ECF No.

in the loss of commissary and phone privileg

rts the following claim

1.) By way of this petition, Petitioner asse

pellings and grammatical

and requests the following relief (all miss

errors are in the original)

Petitioner hereby challenge the legalnes

s of his

confinement/imprisonment and the authority

that give the

F.B.O.P. the right to punish the Petitioner.

Petitioner

ask this Honorable Court to instruct the

defendant to

show proper paper work that give him authorit

y (28 U.S C.

2249) or give justice where justice is due

by immediate

release of the Petitioner.

(Id. at 5.)

Petitioner challenges the Bureau of Prisons

discipline and punish him on the basis

(BOP) authority to

that he was not "duly

convicted" in light of "inaccurate, incomple

te and untimely [court]

records" that "carry no legal force" and

render his judgment of

conviction void. (Pet'r's Rely 2.) Specific

ally

, he complains that

(all misspellings and grammatical errors are

in the original)

[t]he indictment has an unidentified person

signing for

the Assistance U.S. Attorney and no sign

ature for a

foreperson showing 12 jurors or more conc

ured to bond

Petitioner over for trial.

Without an indictment

one cannot render a judgment, and any cour

t can dismiss

or over turn a void judgment.

.

.

.

(Id. at 2.) Petitioner also complain

s that the indictment and

judgment of conviction "are without a cler

k signature and court

seal." (Id. at 2.) In essence, Petitioner challeng

es the validity

of his conviction couched as a challenge to

the BOP's authority to

detain and punish him.'

'The Court notes that the BOP has statutory authority to detai

n individuals

charged with or convicted of offenses again

st the United States, including the

authority to discipline individuals charged

with or convicted of offenses against

the United States. See 18 U.S.C. § 4042 (a)

(3).

2

II. Discussion

A § 2241 petition attacking a

federal conviction may only be

considered if the petitioner

est

ablishes that the remedy under

2255(e) is "inadequate or ine

ffective to test the validity

§

of his

detention." 28 u.S.C. § 2255(e

) (the so-called "savings cla

use");

Tolliver v. Dobre, 211 F.3

d 876, 877 (5th Cir. 2000)

burden, a petitioner must show

.

To meet this

that (1) the petition raises a

that is based on a retroactivel

claim

y applicable Supreme Court dec

(2) the claim was foreclosed

ision,

by circuit law at the time it

should

oner's trial, appeal, or first

§ 2255

have been raised in the petiti

motion, and (3) the retroacti

vely applicable decision establ

ish

es

that the petitioner may hav

e been convicted of a nonexi

stent

offense. Garland v. Roy, 615 F.3

d 391

, 394 (5th Cir. 2010) ; Reyes-

Requena v. United States, 243

F.3d 893, 904 (5th Cir. 200

1)

Petitioner fails to meet

any of these requirements

.

Furthermore, Petitioner's cla

im has already been adjudicat

ed

against him in the convicting

court. Petitioner raised the

same or

similar claim regarding the leg

itimacy of his indictment in

his §

2255 motion in the context of

an ineffectiv-assistance-of -co

unsel

claim. (Mem. 8-10, Hall v. Uni

ted States, Case No. 2:14-CV-3

64-TS,

ECF No. 1-1.) The court addres

sed the issue as follows:

Petitioner asserts that the Ind

ictment is not lawful

because it is merly a draft and

not a final Indictment,

and because it does not contai

n the requisite signatures

by the U.S. Attorney or the for

eman of the grand jury.

Having reviewed the Indictmen

t filed on the public

docket in this matter, the Court finds that the

Indictment is a final, executed copy, not a draft.

Second, Assistant U.S. Attorney Drew Yeates signed the

Indictment on behalf of Assistant U.S. Attorney Paul

Kohler. Third, the foreperson's signature is represented

by the notation "Is!" on the public docket copy of the

Indictment. The U.S. Supreme Court has explained, "[T]he

foreman's duty to sign the Indictment is a formality, for

the absence of the foreman's signature is a mere

technical irregularity that is not necessarily fatal to

the Indictment." Moreover, the Tenth Circuit has found

that such a notation representing the foreman of the

grand jury is proper on the public copy of the

Indictment.

(Id. at 12 (footnotes omitted) .)

Following denial of his § 2255 motion, Petitioner raised the

same or similar claim again in a Rule 60(b) motion, which the

convicting court dismissed as an unauthorized second or successive

§ 2255 motion. (Mot. & Order, United States v. Hall, Case No. 2:10cr-1109-TS-1, ECF Nos. 175 & 176.) Finally, to no avail, Petitioner

sought mandamus relief to compel the clerk of the district court to

answer his "Proving an Official Record," certifying that his copy

of the indictment was a true and correct copy of his original

indictment and that it bears "the same style filing stamp, the

exact same U.S. Attorney signature . . ., that there is a black box

covering up the signature of the foreperson signature and that this

is a legal document and have legal force without the official court

seal and clerk signature certifying true and correct copy."

(Order, United States v. Hall, Case No. 2:10-cr--1109-TS-1, ECF No.

188.) Petitioner cannot rely on § 2241 simply because his prior

efforts were unsuccessful or because he cannot meet the

5

I

11

e motion under § 2255. See

requirements for a second or successiv

)

Pack v. Yusuff, 218 F.3d 448, 453 (5th Cir. 2000

eria required to invoke

Because Petitioner has not met the crit

the savings clause of § 2255 as to

the claim presented in this

habeas-corpus proceeding, the Court

is without jurisdiction to

s, 342

consider the petition. Christopher v. Mile

F.3d 378, 385 (5th

Cir. 2003).

DISMISSES Petitioner's

For the reasons discussed, the Court

petition for a writ of habeas corpus

pursuant to 28 U.S.C. 5 2241

11

for lack of jurisdiction.

edure 22 provides that

Further, Federal Rule of Appellate Proc

ificate of appealability is

an appeal may not proceed unless a cert

ate of appealability may

ific

issued under 28 U.S.C. § 2253. The cert

a substantial showing of the

issue "only if the applicant has made

denial of a constitutional right."

322, 336 (2003)

.

Miller-El v. Cockrell, 537 U.S.

"Under this standard, when a district

court denies

al claims on their merits,

ion

habeas relief by rejecting constitut

'the petitioner must demonstrate that

reasonable jurists would find

the district court's assessment of

the constitutional claims

498 (5th

v. Thaler, 675 F.3d 482,

debatable or wrong.'" McGowen

00)).

niel, 529 U.S. 473, 484 (20

Cir. 2012) (quoting Slack v. McDa

ition on procedural grounds

When the district court denies the pet

tioner must show "that jurists

without reaching the merits, the peti

ther the petition states a

of reason would find it debatable whe

valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district

court was correct in its procedural ruling." Id. (quoting Slack,

529 U.S. at 484)

.

This inquiry involves two components, but a court

may deny a certificate of appealability by resolving the procedural

question only. Petitioner has not made a showing that reasonable

jurists would question this Court's procedural ruling. Petitioner

has neither alleged nor demonstrated that she is entitled to

proceed under 28 U.S.C. § 2241. Therefore, a certificate of

appealability should not issue.

SIGNED April 6, 2017.

MAN~

TERJ~R

S

R.~

UNITED STATES DISTRICT JUDGE

7

Additional material

10

from this fil10ing is

available 1*n the

Clerk's Office.