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Suter v. United States

United States District Court, N.D. Texas, Dallas Division

April 25, 2019

RUDOLF SUTER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Special Order 3-251, this habeas case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the Motion Under 28 U.S.C. § 2255, to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, received on June 7, 2018, should be DENIED with prejudice.

         I. BACKGROUND

         Rudolf Suter (Movant) challenges his federal conviction in Cause No. 3:17-CR-0046-N-1. The respondent is the United States of America (Government).

         On June 6, 2017, Movant pleaded guilty to perjury in a federal proceeding under oath, in violation of 18 U.S.C. § 1621(2), and his plea was accepted on July 7, 2017. (See No. 3:17-CR-0046-N-1, docs. 47, 51.) He was sentenced to time served and a one-year term of supervised release on November 6, 2017, and judgment was entered on that same date. (See id., docs. 64, 65.) His conditions of supervised release provided that “if ordered deported or removed, the defendant shall remain outside the United States.” (See Id. at 5.) Movant initially filed a notice of appeal but voluntarily withdrew it. (See id., docs. 67, 74, 75.)

         While serving his one-year term of supervised release, Movant mailed his § 2255 motion from Lucerne, Switzerland, on May 31, 2018, approximately six months after he was deported on December 12, 2017. (See id., doc. 65 at 3; No. 3:18-CV-1474-N, doc. 2 at 1, 16, 18.) It contends that he was entrapped by a United States Marshal, he was illegally incarcerated on a separate civil matter, the attorneys conspired against him, and he was coerced into confessing. (See No. 3:18-CV-1474-N, doc. 2 at 7-8, 11-14.)[1] It also claims that certain documents were not filed in his criminal case “due to ignorance of the appointed defenders, ” and his reply brief alleges ineffective assistance of counsel on numerous other grounds. (See docs. 2 at 14; 12 at 3.) Finally, Movant asserts civil claims and requests “relief of not less than $50 million.” (See docs. 2 at 15; 12 at 1.)

         II. JURISDICTION

         A § 2255 motion is a petition for relief from a conviction or sentence made by a prisoner under a federal sentence. A “movant is no longer in federal custody for the purpose of § 2255 relief where the sentence imposed for that conviction has expired.” United States v. Esogbue, 357 F.3d 532, 534 (5th Cir.2004) (citing Custis v. United States, 511 U.S. 485, 497 (1994)). However, if a movant has been released from federal prison, federal courts maintain jurisdiction over his § 2255 motion if he remains subject to a term of supervised release. See United States v. Bejarano, 751 F.3d 280, 285 n.4 (5th Cir. 2014).

         A condition of supervised release that prohibits a person who is deported from reentering the country remains in effect after the person is deported. See United States v. Heredia-Holguin, 823 F.3d 337, 341-42 (5th Cir. 2016) (en banc); see also United States v. Fuentes-Cruz, 669 Fed.Appx. 255, 256 (5th Cir. 2016) (citing United States v. Brown, 54 F.3d 234, 238-39 (5th Cir. 1995) (stating that “a term of supervised release remains in effect after a person is deported.”). Because Movant was subject to supervised release at the time he filed his § 2255 motion, the Court maintains jurisdiction to review it. See Bejarano, 751 F.3d at 285 n.4; Pack v. Yusuff, 218 F.3d 448, 454 n.5 (stating that § 2255 requires that at the time a prisoner files the motion, “he must be ‘in custody' for the conviction or sentence he wishes to challenge in order for the habeas court to have jurisdiction. Usually, ‘custody' signifies incarceration or supervised release, but in general it encompasses most restrictions on liberty resulting from a criminal conviction.”).

         III. SCOPE OF RELIEF AVAILABLE UNDER § 2255

         “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). It is well-established that “a collateral challenge may not do service for an appeal.” United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)).

         A failure to raise a claim on direct appeal may procedurally bar an individual from raising the claim on collateral review. United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Defendants may only collaterally attack their convictions on grounds of error omitted from their direct appeals upon showing “cause” for the omission and “actual prejudice” resulting from the error. Shaid, 937 F.2d at 232. However, “there is no procedural default for failure to raise an ineffective-assistance claim on direct appeal” because “requiring a criminal defendant to bring [such] claims on direct appeal does not promote the[] objectives” of the procedural default doctrine, “to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 503-04 (2003).

         IV. ANALYSIS

         Movant asserts that his initial arrest was improper because he was entrapped by a United States Marshal, his incarceration on a civil matter violated his due process rights, his attorney conspired with the U.S. Attorney's Office “to construe a criminal charge” against him, and he was coerced into confessing. (See doc. 2 at 7-8, 11-14.) ...


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