342 F.3d 378 (5th Cir. 2003), 02-51062, Christopher v. Miles

Docket Nº:02-51062
Citation:342 F.3d 378
Party Name:Christopher v. Miles
Case Date:August 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 378

342 F.3d 378 (5th Cir. 2003)

Charles Simpson CHRISTOPHER, Petitioner-Appellant,

v.

R.D. MILES, Warden, Federal Correction Institute Bastrop, Respondent-Appellee.

No. 02-51062.

United States Court of Appeals, Fifth Circuit

August 6, 2003

Page 379

Terrance Gilroy Reed (argued), Alexandria, VA, for Petitioner-Appellant.

Mark Randolph Stelmach, Asst. U.S. Atty.(argued), Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Petitioner-Appellant Charles Simpson Christopher appeals the decision of the district court denying his request for relief pursuant to 28 U.S.C. § 2241 from his conviction for eleven counts of wire fraud and ten counts of interstate transportation of stolen goods. Because we conclude that Christopher's claim fails to satisfy the 28 U.S.C. § 2255 savings clause, we vacate the district court's judgment and remand with orders to dismiss Christopher's petition for lack of jurisdiction.

I. FACTS AND PROCEDURAL BACKGROUND

In 1988, Christopher served, for a period of about eighty days, as the vice president of Resolute Holdings Company ("Resolute"). During Christopher's tenure, Resolute applied to three different state regulatory agencies for approval of

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its proposed acquisition of two insurance companies, Diamond Benefits of Arizona ("Diamond") and American Universal of Rhode Island ("American"). At the time, George Reeder was the president and majority stockholder of Resolute.

In seeking these regulatory approvals, Christopher and Reeder made certain assurances to the state regulators, including an assurance that Resolute would not use the assets of acquired companies to pay for the purchases and an assurance that the collateral Resolute tendered would be clear of any pre-existing liens. Resolute acquired Diamond and American in the summer of 1988. However, contrary to the given assurances, Resolute used the assets of Diamond and American to pay the purchase price and to clear liens on real estate (owned by Reeder) that had been used as collateral by Resolute. After Resolute acquired American and Diamond, Christopher and Reeder looted the companies' assets, converting millions of dollars for their own purposes. Christopher was fired from Resolute in September of 1988. In 1993, both American and Diamond went into receivership.

In 1993, Christopher and Reeder were indicted with multiple counts of wire fraud in violation of 18 U.S.C. § 1343 and interstate transportation of stolen goods in violation of 18 U.S.C. § 2314. Both statutes prohibit schemes to obtain "money or property by means of false or fraudulent pretense." 18 U.S.C. § 1343 (2000); id. § 2314. The indictment alleges Christopher and Reeder had acquired both the regulatory approvals and money by means of fraud and false representations.

After a 1995 jury trial, Christopher was convicted in the District Court for the District of Rhode Island with eleven counts of wire fraud and ten counts of interstate transportation of stolen goods. The court sentenced Christopher to a term of imprisonment of 121 months, three years of supervised release, and restitution to American and Diamond in the total amount of $26,700,000.

Christopher moved for a new trial on the grounds that his convictions were invalid because he had not defrauded anyone out of a recognizable property interest. The district court denied the motion, finding that the regulatory approvals that Resolute had obtained qualified as property interests within the meaning of the statutes. Christopher appealed this finding, and the First Circuit affirmed. United States v. Christopher, 142 F.3d 46 (1st Cir. 1998).

Christopher then filed a timely petition to vacate his sentence pursuant to 28 U.S.C. § 2255 in the Rhode Island district court. His § 2255 petition did not assert that regulatory approval was not a property interest; at the time, First Circuit precedent foreclosed such an argument. United States v. Bucuvalas, 970 F.2d 937, 945 (1st Cir. 1992) (holding that alcoholic beverage and entertainment licenses constituted "property" within the meaning of the mail fraud statutes). After Christopher filed his § 2255 petition, the Supreme Court, in Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000), held that a government's interest in licensing an activity was not a property interest for purposes of conviction under the mail fraud statutes. Id. at 15, 121 S.Ct. 365 ("We conclude that permits or licenses of this order do not qualify as 'property' within § 1341's compass. It does not suffice, we clarify, that the object of the fraud may become property in the recipient's hands; for purposes of the mail fraud statute, the thing obtained must be property in the hands of the victim.").

Christopher then filed a motion to amend his § 2255 petition to include a claim based on Cleveland. The district

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court held that Christopher's Cleveland claim was untimely and that, even assuming Cleveland stated a new rule of constitutional law, the case did not apply retroactively. Christopher v. United States, 146 F.Supp.2d 146, 151 (D.R.I.2001). Christopher did not thereafter continue to pursue relief on these grounds under § 2255.

In November 2001, Christopher filed a petition for habeas relief pursuant to 28 U.S.C. § 2241 in the District Court for the Western District of Texas (where he is incarcerated), rearguing his Cleveland claim. The magistrate judge assigned to the case found that § 2241 relief was available to Christopher because he had satisfied the § 2255 "savings clause" test. However, the magistrate also found that Christopher's conviction was valid notwithstanding Cleveland because both the grand jury indictment and the trial jury instruction described the scheme as a fraudulent attempt to obtain money, not a fraudulent attempt to obtain the regulatory licenses that Cleveland had invalidated as a grounds for conviction under the mail fraud statutes. The district court adopted the magistrate's position and issued a final judgment denying relief.

Christopher now appeals to this court, raising the Cleveland issue once again.

II. CHRISTOPHER'S § 2241 CLAIM BASED ON CLEVELAND

Christopher brought an initial § 2255 petition in the district court in which he was convicted; this petition did not raise the Cleveland issue. When he attempted to bring a second § 2255 petition to address the applicability of this intervening Supreme Court decision to his own case, the district court denied the petition as failing to meet the stringent statutory standards for filing a second or successive petition. See 28 U.S.C. § 2255 (2000):

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-- (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Id. Because Cleveland did not state a retroactively applicable new rule of constitutional law, the district court rejected Christopher's successive § 2255 petition.

Christopher now attempts to raise the Cleveland issue by means of a § 2241 petition. 1 While § 2241 is more typically used to challenge the execution of a prisoner's sentence, a federal prisoner may bring a petition under § 2241 to challenge the legality of his conviction or sentence if he can satisfy the mandates of the "savings clause" of § 2255. Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001).

...

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