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Stephens v. United States

United States District Court, S.D. Ohio, Western Division

March 28, 2018

Maurice Stephens, Petitioner,
v.
United States of America, Respondent.

          ORDER

          Michael R. Barrett United States District Judge

         This 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).

         I. BACKGROUND

         Petitioner 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.

         II. STANDARD

         A 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)).

         Petitioner 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 Cir. 2014).

         However, 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).

         III. ANALYSIS

         1. Motion to Abate for Lack of Subject Matter Jurisdiction (Doc. 267)

         Petitioner 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).

         Petitioner 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.

         Even 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.

         2. Petition to Dismiss for Lack of Personam Jurisdiction, Lack of Standing “Habeas ...


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