United States District Court, S.D. Ohio, Western Division
Michael R. Barrett United States District Judge
matter is before the Court on Petitioner Maurice
Stephen's: 1) Motion to Abate for Lack of Subject Matter
Jurisdiction (Doc. 267); 2) Petition to Dismiss for Lack of
Personam Jurisdiction, Lack of Standing “Habeas Corpus
Relief” (Doc. 269); 3) Motion to Dismiss (Doc. 286); 4)
Motion for Miscellaneous Relief (Doc. 288); and 5) Motion to
Vacate under 28 U.S.C. 2255 (Doc. 297), and the responsive
memoranda thereto. Petitioner also filed a Motion for
Appointment of Counsel related to his latest §2255
motion (Doc. 305).
pled guilty to conspiracy to possess with intent to
distribute more than one kilogram of heroin. (Doc. 119). On
April 11, 2012, he was sentenced to 120 months imprisonment
and five years of supervised release. (Doc. 234). On June 21,
2016, however, this Court granted a subsequent motion to
reduce his sentence thereby reducing his sentence to 76
months imprisonment. (Doc. 277). Petitioner did not appeal
his conviction or otherwise appeal his sentence.
prisoner seeking relief under 28 U.S.C. § 2255 must
allege either “(1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” Mallett v. United States, 334 F.3d
491, 496-97 (6th Cir. 2003) (quoting
Weinberger v. United States, 268 F.3d 346, 351
(6th Cir. 2001)).
is proceeding pro se. Because each of
Petitioner's motions attack the constitutionality of his
conviction or his sentence in some capacity, the Court
reviews his motions under the scope of § 2255,
regardless of the “inventive captioning” of some
of Petitioner's motions. See e.g., Pilla v. United
States, 668 F.3d 368, 372 (6th Cir. 2012). Generally,
before a second or successive § 2255 motion may be filed
in the district court, a federal prisoner must file a motion
in the court of appeals as provided in 28 U.S.C. §
2254(b). Here, however, the Court finds that Petitioner's
numerous motions are not second or successive petitions under
28 U.S.C. § 2255(h), as they were filed before the
adjudication of the initial § 2255 motion was complete.
Clark v. United States, 764 F.3d 653, 658-59 (6th
a motion to vacate, pursuant to 28 U.S.C. § 2255 is not
a substitute for direct appeal, and issues which could have
been raised on direct appeal are generally not actionable in
a § 2255 motion and will be considered procedurally
barred. Ray v. United States, 721 F.3d 758, 761 (6th
Cir. 2013). If a claim could have been raised on direct
appeal, the Court considers it for the first time in a §
2255 motion only if the petitioner shows: 1) cause and actual
prejudice to excuse his failure to raise the claim
previously; or 2) that he is “actually innocent”
of the crime. Ray, 721 F.3d at 761 (citing
Bousley v. United States, 523 U.S. 614, 622 (1998).
Motion to Abate for Lack of Subject Matter Jurisdiction
argues he was not notified of a grand jury being seated to
investigate him. Therefore, he argues the “claim”
against him should be dismissed because he “did not
have the opportunity to challenge the jury pool or individual
jurors seated on the grand jury as required by FRCP 6(b)(1)
and (2)…” (Doc. 267, PageID 1223).
pled guilty, and in doing so, waived certain appellate rights
under 18 U.S.C. § 3742. Notwithstanding the waiver of
his rights, Petitioner has not shown cause and prejudice to
excuse his failure to raise this claim previously nor has he
argued he is “actually innocent.” Accordingly,
Petitioner has failed to meet the criteria outlined in
Ray for collateral review.
assuming his claims were not procedurally barred, a motion to
dismiss under Federal Rule of Criminal Procedure 6(b) is
governed by 28 U.S.C. § 1867. § 1867(a) requires a
motion to dismiss in a criminal case challenging compliance
with grand jury selection procedures be brought before voir
dire examination begins or within seven days after the
defendant discovered or could have discovered the grounds for
the motion, whichever is earlier. Because Petitioner
has already been convicted, a motion to dismiss under Fed. R.
Crim. P. 6 is untimely and thus, Petitioner would not be
entitled to the relief he requests.
Petition to Dismiss for Lack of Personam Jurisdiction,
Lack of Standing “Habeas ...