Falice v. United States, Case No. CIV-16-1204-HE

• Decision Date: 25 October 2016
• Docket Number: Case No. CIV-16-1204-HE
• Parties: REGINALD A. FALICE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Oklahoma

REGINALD A. FALICE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No. CIV-16-1204-HE

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

October 25, 2016

REPORT AND RECOMMENDATION

Petitioner, appearing pro se, is a federal prisoner currently incarcerated at the Federal Transfer Center in Oklahoma City, Oklahoma. Petitioner's claims arise out of his 2000 conviction and sentence in the United States District Court for the Western District of North Carolina. Although Petitioner identifies this conviction only as "Contract No. 3:98CR244," see Petition [Doc. No. 1], allegations made by Petitioner, including his reference to the name of the federal judge presiding over his criminal trial, and this Court's review and judicial notice of court dockets establish that he is in custody and currently serving the federal conviction and sentence entered in Case No. 3:98-cr-244-GCM, United States District Court for the Western District of North Carolina.¹ This matter has been referred by Chief United States District Judge Joe Heaton for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth below, it is recommended that Petitioner's action, construed as a secondor successive motion brought pursuant to 28 U.S.C. § 2255, be dismissed for lack of jurisdiction.²

I. Factual Background

Petitioner is currently serving two concurrent terms of life imprisonment arising from his conviction in Case No. 3:98-cr-244-GCM, United States District Court for the Western District of North Carolina. Petitioner was convicted, after jury trial, of one count of interstate domestic violence resulting in bodily injury and death, in violation of 18 U.S.C. §§ 2261(a), 2261(b) and 2266, and one count of using or carrying a firearm during and in relation to murder, in violation of 18 U.S.C. §§ 924(c)(1), 924(j) and 1111. Petitioner's conviction was affirmed by the Fourth Circuit Court of Appeals on September 17, 2001. See United States v. Falice, 18 F. App'x 210 (4th Cir. 2001).

Petitioner has previously brought multiple § 2255 challenges to his conviction and sentence. See Falice v. United States, Case No. 3:14-cv-640-GCM, Order [Doc. No. 2] (W.D. N.C. Nov. 18, 2014) (identifying Petitioner's attempts to obtain relief from his judgment of conviction). Additionally, Petitioner has initiated multiple civil lawsuits raising challenges to his criminal prosecution. See Falice v. United States, Case No. 3:13-cv-629-FDW, Order [Doc. No. 14] (W.D. N.C. Dec. 11, 2013) (reciting Petitioner's litigation history). Indeed, filing restrictions have been imposed upon Petitioner in the United States District Court for the Western District of North Carolina. See id. Petitioner appears to capitalize on his temporary confinement at the Federal Transfer Center in Oklahoma City, located within the confines of this judicial district, as anopportunity to circumvent these filing restrictions and the circuit authorization requirements accompanying his successive § 2255 motion.

II. Analysis

Notwithstanding Petitioner's creative casting of his claim for relief, the Court construes the Petition as a second or successive § 2255 challenge to his federal conviction.³ He makes reference to his criminal case as a "federal contract" and challenges the validity of the contract. Specifically, he states:

This missive is deposited to address several issues regarding Contract No. 3:98CR244. Foremost No. 3:98CR244, is not a 'bonafide' federal contract. No. 3:98CR244, is a private enterprise, arranged/orchestrated by Graham C. Mullen. Graham, masked himself as being a federal judge, cloaked with authority to construct such an arrangement.

See Petition at ECF p. 1. In the body of the Petition, Petitioner identifies not only the judge presiding over his criminal trial but also the attorneys participating in the trial - both for the prosecution and the defense - and claims that these persons acted without authority. He contends therefore, that "there is no Federal Contract No. 3:98CR244" and states: "[a] cease/desist order should execute to end/stop all contracts associated herewith." See Petition at ECF p. 4. Additionally he states "[a]ll events of 'human trafficking' must come to a halt." See id. Petitioner's request to "end" the contract essentially requests the Court to find his conviction is not valid.

Petitioner has made repeated and related claims in the judicial district of his conviction, the United States District Court for the Western District of North Carolina. As referenced above, the courts in that judicial district have rejected his claims. In doing so, the courts have noted the "bizarre" nature of Petitioner's allegations and found them to be "factually baseless." See, e.g., Falice v. Graham, Case No. CIV-01-455-V, Order [Doc. No. 2] (W.D.N.C. Aug. 24, 2001) at ECF p. 5 (stating that "the plaintiff's continued attempts to use broad brushes to paint an array of constitutional violations which he allegedly suffered at the hands of federal Judges, prosecutors, Court personnel, and now State government employees again has failed miserably" and concluding that the conclusory allegations of the Complaint "cannot be entertained by the Court") (citing Neitzke v. Williams, 490 U.S. 319, 327-28 (1989)) (additional citation omitted); see also Falice v. United States, No. CIV-13-629-FDW, Order [Doc. No. 14] (W.D. N.C. Dec. 11, 2013) at ECF p. 3 ("After reviewing Falice's complaint, this Court finds that he is simply presenting the substance of his nearly countless efforts to challenge his criminal prosecution and conviction, and it will be dismissed as it presents nothing short of frivolous and vexatious allegations that are clearly baseless.").

This Court similarly finds the current action to be frivolous and baseless. See Neitzke, 490 U.S. at 324 (a claim is legally frivolous where the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim); Denton v. Hernandez, 504 U.S. 25, 33 (1992) (a claim is factually frivolous "when the facts alleged rise to the level of the irrational or the whollyincredible). Regardless of how Petitioner's claims might be construed, his action should be dismissed.⁴

A. The Petition Should be Construed as a Second or Successive Motion Under 28 U.S.C. § 2255.

Petitioner's purported challenge to the validity of his conviction and sentence pursuant to 28 U.S.C. § 2255 must be brought in the United States District Court for the Western District of North Carolina. See Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (where a federal prisoner challenges the legality or validity of his conviction and sentence, his "exclusive remedy" is through a motion filed pursuant to 28 U.S.C. § 2255 and must be brought in the district that imposed the sentence); see also Perez-Carrera v. Stancil, 616 F. App'x 371 (10th Cir. 2015) (a defendant challenging his conviction and sentence under 28 U.S.C. § 2255 must do so in the circuit of his conviction).

As set forth, Petitioner has previously sought relief pursuant to § 2255 challenging the validity of his conviction and sentence. Thus, in order to proceed with a second or successive § 2255 motion, Petitioner must first obtain prior authorization from the Fourth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not demonstrated he has obtained such prior authorization and, therefore, the Petition should be dismissed for lack of jurisdiction. See Stanko v. Davis, 617 F.3d 1262, 1266 (10th Cir. 2010) (a district court lacks jurisdiction over a second or successive § 2255 motion absentcertification from the appropriate court of appeals). Moreover, because Petitioner's claims appear to be wholly frivolous, the Court finds a transfer to the circuit is not in the interests of justice. See 28 U.S.C. § 1631; see also In re Cline, 531 F.3d 1249, 1252-53 (10th Cir. 2008) (addressing circumstances where transfer of a second or successive § 2255 motion would be appropriate).⁵

B. Because Any Other Claims Raised by Petitioner are Frivolous, the Court Recommends Dismissal of Those Claims.

The only conceivable claims Petitioner might raise, other than a successive § 2255 challenge to his conviction, include a claim for habeas relief under 28 U.S.C. § 2241, a claim challenging the conditions of his confinement under 28 U.S.C. § 1331 and/or Bivens,⁶ or a claim for mandamus relief under 28 U.S.C. § 1361. Due to thefrivolous nature of Petitioner's allegations, the Court recommends, in the alternative, dismissal of any such claims.

1. The Allegations of the Petition Do Not Support a Claim for Habeas Relief Under Section 2241.

"A petition brought under 28 U.S.C. § 2241 typically attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined." Brace, 634 F.3d 1167, 1169 (10th Cir. 2011) (internal quotation marks and citation omitted); see also Prost, 636 F.3d at 581 (a § 2241 petition challenges "the nature of a prisoner's confinement, not the fact of his confinement"). Petitioner is presently confined within this judicial district and within the Tenth Circuit Court of Appeals.

But Petitioner alleges no facts to show that he is in challenging the execution of his sentence or the nature of his confinement. He does not, for instance, seek to challenge "certain matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters . . . affecting the fact or duration" of his custody. Hale v. Fox, 829 F.3d 1162, 1165 n. 2 (10th Cir. 2016) (internal quotation marks and citation omitted). Instead, he "attempts a frontal assault on his conviction." Prost, 636 F.3d at 581. Accordingly, Petitioner fails to establish a basis for habeas relief arising under § 2241.

2. Petitioner Raises No Cognizable Conditions of Confinement Claim Under 28 U.S.C. § 1331 or Bivens.

Petitioner...