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Berman v. United States

United States District Court, W.D. Texas, El Paso Division

November 7, 2017

KENNETH DEAN BERMAN, Reg. No. 82369-208,
v.
UNITED STATES OF AMERICA.

          MEMORANDUM OPINION AND ORDER

          FRANK MONTALVO UNITED STATES DISTRICT JUDGE.

         Kenneth Dean Berman, a prisoner at the La Tuna Federal Correctional Institution in Anthony, Texas, [1] seeks relief from his sentence through a pleading he identifies as a "Complaint."[2] Berman, proceeding pro se and in forma pauperis, explains he pleaded guilty to distributing child pornography, in violation of 18 U.S.C. § 2255A(a)(2)(B). Berman now asserts § 2255A(a)(2)(B) is unconstitutional.[3]The Court, after reviewing the record and for reasons discussed below, will construe Berman's "Complaint" as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. The Court, on its own motion, will additionally dismiss Berman's petition, pursuant to 28 U.S.C. § 2243.[4]

         BACKGROUND AND PROCEDURAL HISTORY

         On December 29, 2009, Berman knowingly distributed an image of child pornography in interstate commerce via the internet. Berman pleaded guilty, pursuant to a plea agreement, to one count of distributing child pornography, in violation of 18 U.S.C. § 2255A(a)(2)(B), in the United States District Court for the District of Arizona.[5] In the plea agreement, Berman waived "any right to file an appeal, any collateral attack, and any other writ or motion that challenge[d] the conviction... including but not limited to any appeals under 18 U.S.C. § 3742 and motions under 28 U.S.C. § 2241 and 2255."[6] Berman was sentenced to 90 months' imprisonment followed by a lifetime of supervised release.[7] Berman did not file a direct appeal or § 2255 motion.

         In his "Complaint, " Berman asserts 18 U.S.C. § 2255A(a)(2)(B) is unconstitutional. He claims it (1) violates his First Amendment free speech protections; (2) exceeds the delegated enumerated powers granted Congress by the Constitution; (3) usurps the police powers of the various states, (4) could not apply to him because, as a resident of the State of Arizona, he did not reside in a territory or insular possession of the United States Government; and (5) does not grant subject-matter jurisdiction to the federal courts. He seeks a declaratory judgment, [8] "which would result in [his] release from prison and all other collateral sanctions and consequences resulting from said conviction."[9]

         APPLICABLE LAW

         Federal courts may construe and re-characterize a pro se prisoner's action "according to the essence of the prisoner's claims."[10] "The relief sought by the prisoner or the label he places upon the action is not the governing factor."[11]

         "Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus... and a [civil rights] complaint."[12] The "sole function" of a habeas petition is relief from unconstitutional custody, and "it cannot be used for any other purpose."[13] Allegations complaining of the rules, customs, and procedures affecting conditions of confinement or treatment of prisoners are properly brought in a civil rights action under 42 U.S.C. § 1983 or Bivens.[14] Accordingly, "any challenge to the fact or duration of a prisoner's confinement is properly treated as a habeas corpus matter, whereas challenges to conditions of confinement may proceed under Section 1983."[15]

         A motion to vacate under 28 U.S.C. § 2255 '"provides the primary means of collateral attack on a federal sentence.'"[16] Relief under § 2255 is warranted for errors that occurred at trial or sentencing.[17] A § 2255 movant may only bring his motion in the district of conviction and sentence.[18]

         By contrast, a petition for writ of habeas corpus under 28 U.S.C. § 2241 "attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration."[19] To prevail, a § 2241 petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States."[20] A § 2241 petitioner may make this attack only in the district court with jurisdiction over his custodian.[21]

         Section 2255 contains a "savings clause" which acts as a limited exception to these rules. It provides that a court may entertain a § 2241 petition challenging a sentence if it concludes that riling a § 2255 motion is inadequate to challenge a prisoner's detention.[22] A petitioner must satisfy a two-prong test before he may invoke the "savings clause" to address errors occurring at trial or sentencing in a petition filed pursuant to § 2241:

[T]he savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion.[23]

         A petitioner must prove both prongs to successfully invoke the savings clause.[24] Thus, § 2241 is not a mere substitute for § 2255, and a petitioner bears the burden of showing the § 2255 remedy is inadequate or ineffective.[25]

         Finally, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner."[26]

         ANALYSIS

         Berman does not specify the statutory basis for his lawsuit in bistro se "Complaint." He explains he pleaded guilty to distributing child pornography, in violation of 18 U.S.C. § 2255A(a)(2)(B), but now asserts § 2255 A(a)(2)(B) is unconstitutional.[27] He seeks a declaratory judgment.[28] This, according to Berman, "would result in [his] release from prison and all other collateral sanctions and consequences resulting from said conviction."[29]

         Because Berman challenges the fact of his imprisonment, the Court construes his "Complaint" as a habeas corpus matter.[30] Since Berman pleaded guilty in the United States District Court for the District of Arizona, the Court lacks the jurisdiction necessary to address a § 2255 motion.[31] The Court does have jurisdiction over his custodian. The Court accordingly construes Berman's pleading as a § 2241 petition.[32]

         Berman may proceed with an attack on the validity of his sentence under § 2241 only if he can meet both prongs of the stringent test for the § 2255(e) "savings clause."[33]

         The first prong of the "savings clause" test is, essentially, an actual innocence requirement. The "core idea is that the petitioner may be have been imprisoned for conduct which was not prohibited by law."[34] To meet the first prong, a petitioner must rely on a retroactively applicable Supreme Court decision which establishes that he may have been convicted of a nonexistent offense.[35]

         Bergman fails to identify a retroactively applicable Supreme Court decision which supports his claim. Indeed, the Supreme Court has long upheld the constitutionality of laws prohibiting the distribution of child pornography. In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court rejected a First Amendment challenge and upheld a prohibition on the distribution and sale of child pornography because, it explained, these acts were "intrinsically related" to the sexual abuse of children in at least two ways.[36] First, circulating child pornography continued to harm the child who participated in the abuse.[37] Second, trafficking in child pornography provided an economic motive for producing more child pornography and sexually exploiting children.[38] Under either rationale, the distribution had a proximate link to the crime of child sexual abuse. Thus, the Supreme Court concluded, the State had an interest in closing the distribution network.

         The second prong of the "savings clause" test is a foreclosure requirement. The petitioner must show his claims were foreclosed by circuit law when he could have raised them at trial, on appeal, or in a § 2255 motion. In this case, Berman's claim was foreclosed when he could have raised it in a direct appeal or § 2255 ...


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