Lambros v. Maye

• Decision Date: 17 May 2013
• Docket Number: CASE NO. 13-3034-RDR
• Parties: JOHN GREGORY LAMBROS, Petitioner, v. CLAUDE MAYE, Warden, USP-Leavenworth, et al., Respondents.
• Court: U.S. District Court — District of Kansas

JOHN GREGORY LAMBROS, Petitioner,

v.CLAUDE MAYE, Warden, USP-Leavenworth, et al., Respondents.

CASE NO. 13-3034-RDR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: May 17, 2013

MEMORANDUM AND ORDER

This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary, Leavenworth, Kansas. The filing fee was paid. Petitioner seeks to challenge his federal convictions under § 2241 in this district in which he is currently confined after having failed to obtain relief from the sentencing court in another federal judicial district. Having considered the petition together with the 155 pages of attached exhibits and relevant published court opinions, the court finds that petitioner fails to show that his § 2255 remedy was inadequate or ineffective and, as a result, dismisses this petition for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

In 1993, Mr. Lambros was convicted by a jury in the United States District Court for the District of Minnesota of four cocaine-relatedoffenses, including a conspiracy count. See U.S. v. Lambros, 404 F.3d 1034, 1035 (8th Cir. 2005), cert. denied, 545 U.S. 1135 (2005). "On direct appeal, (the Eighth Circuit Court of Appeals) vacated the sentence on the conspiracy count, remanded for resentencing on that count, and affirmed the conviction in all other respects." Id. (citing U.S. v. Lambros, 65 F.3d 698 (8th Cir. 1995), cert. denied, 516 U.S. 1082 (1996)). His other convictions were also affirmed. "On remand, Lambros filed multiple new trial motions pursuant to Fed.R.Crim.P. 33," which the district court treated as "a single § 2255 motion and denied all the claims." Id. Thus, petitioner's initial § 2255 motion was denied by the sentencing court in 1997. In the meantime, "Lambros appealed the 360-month prison term to which he was resentenced," and the Eighth Circuit affirmed. See id. (citing U.S. v. Lambros, 124 F.3d 209 (8th Cir. 1997)(unpublished), cert. denied, 522 U.S. 1065 (1998)). "Two subsequent § 2255 motions filed by Lambros were dismissed by the district court because (the Eight Circuit Court) had not authorized their filing." Id. In 2001 petitioner began a series of post-judgment motions attempting to overturn the district court's denials of habeas relief. However, these were construed as successive § 2255 motions, and dismissed because he had not obtained Eighth Circuit pre-authorization. Id. (citing U.S. v. Lambros, 40 Fed.Appx. 316 (8th Cir. 2002)(unpublished), cert. denied, 537 U.S. 1195 (2003)); Lambros, 404 F.3d at 1037 ("When Lambros filed multiple new trial motions,after our limited remand for resentencing following his conviction, the district court correctly treated those new trial motions as seeking § 2255 post-conviction relief. His subsequent Rule 60(b) motions and his most recent Rule 59(e) motion were, in reality, efforts to file successive motions for post-conviction relief. Those motions were properly denied because Lambros did not have authorization from this court.").

In 2012 the United State Supreme Court decided Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012). The Tenth Circuit recently summarized these cases as follows:

Both Frye and Lafler concern the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process. Frye held that counsel's failure to inform his client of a plea offer may constitute ineffective assistance of counsel. 132 S.Ct. at 1408, 1410-11. Lafler held that an attorney who rendered constitutionally deficient advice to reject a plea bargain was ineffective where his advice caused his client to reject the plea and go to trial, only to receive a much harsher sentence. 132 S.Ct. at 1383, 1390-91. In each case, the Court reached its decision by applying the well-established principles regarding the assistance of counsel that were initially set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Frye, 132 S.Ct. at 1409-11; Lafler, 132 S.Ct. at 1384, 1390-91.

Id.

CLAIMS

Petitioner's main claim is that based upon Frye and Lafler, he is entitled to have his convictions and sentences vacated and for the prosecution to re-offer its plea proposal that he rejected priorto trial. In support of this claim he alleges that his attorney did not understand the statutory law and guidelines regarding the possible sentences, that he received incorrect information¹ from his attorney and the prosecutor during plea negotiations as to the sentences he could receive on all four counts, and that he was incorrectly advised that he could be sentenced as a career offender. He argued in a prior § 2255 motion that he "only had to show that his attorney failed to communicate pleas offers or failed to give competent counsel regarding a plea offer." He also argued in the Minnesota sentencing court and to the Eighth Circuit that his claims were timely under 28 U.S.C. § 2255(f)(3)² because they were brought within a year of Frye and Lafler. He repeats that argument here. He cited a Ninth Circuit case, which he argued applied Lafler and Frye retroactively, and asserted that he had thus "made a prima facie showing" that "Frye and Lafler are retroactive."

Petitioner's arguments are not always clearly presented or consistent with each other or the cases he cites.³ He alleges thatin June 2012 he sought authorization from the Eighth Circuit to file a successive § 2255 motion that raised the same issues he presents in the instant § 2241 petition and the U.S. Attorney for the District of Minnesota was required to respond. He exhibits many pleadings and rulings from that case, and requests incorporation of all filings from his "second or successive § 2255" into this action. He argues that his illegal sentence constituted a miscarriage of justice and that he qualifies for the "actual innocence exception," apparently based on the fact that his sentence on one count was overturned. In addition, petitioner claims that the sentencing court denied effective review of his ineffective assistance of counsel claim when it re-characterized his new trial motions as his first 2255 motion without giving him the option to withdraw and denied his next 2255 motion as successive. He complains that the Eighth Circuit erroneously denied authorization for a successive § 2255 motion, did not make findings of fact and conclusions of law, and refused to hear his petition for rehearing because preauthorization denials are not appealable. Based on these complaints, he contends that the Eighth Circuit improperly refused to consider his request for a second and successive § 2255 motion, and that such refusal is one of the circumstances noted by the Tenth Circuit as rendering the § 2255 remedy inadequate or ineffective. He thus contends that he is entitled to relief under § 2241.

STANDARDS

28 U.S.C. § 2255(a) provides:

A prisoner in custody under sentence of a (federal) court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or law of the United States . . . , or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Id. Subsection (e) of Section 2255 provides:

An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him . . . . unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

Id. It has long been held in the Tenth Circuit that "[t]he exclusive remedy for testing the validity of a [federal] judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255." Williams v. U.S., 323 F.2d 672, 673 (10th Cir. 1963) cert. denied 377 U.S. 980 (1964); see also Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965). It is the petitioner's burden to show that the § 2255 remedy is inadequate or ineffective, and the § 2255 remedy has been found to be inadequate or ineffective in only "extremely limited circumstances." Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999).

The habeas corpus remedy under 28 U.S.C. § 2241 is available to a prisoner who is "in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2241(c)(3).However, the § 2241 petition does not ordinarily encompass claims of unlawful detention based on the conviction or sentence of a federal prisoner. The Tenth Circuit has explained the difference between the two statutory provisions. "A 28 U.S.C. § 2255 petition attacks the legality of detention, and must be filed in the district that imposed the sentence." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). By contrast, the § 2241 petition "attacks the execution of a sentence rather than its validity." McIntosh v. U.S. Parole Com'n, 115 F.3d 809 811-12 (10th Cir. 1997); Bradshaw, 86 F.3d at 166. A § 2241 petition "is not an additional, alternative, or supplemental remedy to the relief afforded by motion in the sentencing court under § 2255." Williams, 323 F.2d at 673.

Section 2255 motions are subject to two significant statutory "gate-keeping" restrictions: a one-year statute of limitations, § 2255(f); and a ban on second and successive motions, § 2255(e). A habeas petitioner may not avoid these restrictions by simply bringing his claims under § 2241.

DISCUSSION

This petition is deficient in several ways. First, arguments are not properly raised in a habeas corpus petition by merely incorporating numerous pleadings from another case. For this reason and based upon local court rules, petitioner could be required to submit an amended petition upon court-approved forms. However, anamended petition is not required because it is apparent from the materials...