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United States v. McMorrow

March 10, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PATRICK TIMOTHY MCMORROW, DEFENDANT.
PATRICK TIMOTHY MCMORROW, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court

ORDER DISMISSING DEFENDANT'S MOTION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255

Before the Court is the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on September 8, 2008. See Docket No. 113. The Government filed a response in opposition to the motion on October 24, 2008. See Docket No. 120. The Court granted the Defendant an extension of time until February 20, 2009, to file a reply brief, but he failed to do so. The motion is denied for the reasons set forth below.

I. BACKGROUND

On November 5, 2003, the defendant, Patrick Timothy McMorrow, was indicted on three counts: (1) mailing threatening communications; (2) extortion through the use of mail; and (3) threatening the use of a weapon of mass destruction. See Docket No. 4. On July 22, 2004, a jury found McMorrow guilty of all three counts. On October 6, 2004, the Court sentenced McMorrow to 140 months of imprisonment. McMorrow appealed the conviction and the Government appealed the sentence. On January 30, 2006, the Eighth Circuit Court of Appeals affirmed the conviction but vacated the sentence and remanded for resentencing. See Docket No. 90. On May 15, 2006, the Court sentenced McMorrow to 360 months of imprisonment. McMorrow appealed the sentence. The Eighth Circuit Court of Appeals affirmed the sentence on December 27, 2006. See Docket No. 104. The Eighth Circuit's mandate was issued on January 22, 2007. See Docket No. 105. McMorrow did not file a petition for a writ of certiorari with the United States Supreme Court.

On January 7, 2008, McMorrow filed a motion for habeas corpus relief pursuant to 28 U.S.C. § 2255. See Docket No. 109. On January 24, 2008, the Court dismissed the motion without prejudice. See Docket No. 112.

The Section 2255 motion now before the Court was filed on September 8, 2008. McMorrow alleges the following: (1) he is being confined in a special housing unit because prison authorities mistakenly believe he is a sex offender; (2) he has been denied access to the law library and legal assistance while in the special housing unit; (3) an FBI agent falsely testified at McMorrow's trial; and (4) he received ineffective assistance of counsel when he was not appointed an investigator to assist in his defense. See Docket No. 113.

The Government contends that McMorrow's Section 2255 motion was untimely because it was not filed within the one-year limitation period. Alternatively, the Government contends that McMorrow's special housing unit and lack of access to legal resources claims are not properly brought under Section 2255; that the FBI agent's testimony, even if false, did not affect the trial; and that McMorrow was not prejudiced by not having a private investigator appointed.

II. STANDARD OF REVIEW

A. 28 U.S.C. § 2255

28 U.S.C. § 2255 authorizes a challenge by a prisoner in federal custody "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law . . . ." "A motion made pursuant to 28 U.S.C. § 2255 requires a showing of either constitutional or jurisdictional error, or a 'fundamental defect' resulting in a 'complete miscarriage of justice.'" United States v. Gianakos, 2007 WL 3124686, at *4 (D.N.D. Oct. 23, 2007) (quoting Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962)). A prisoner who challenges the validity of a sentence must bring a claim under Section 2255 in the district of the sentencing court. Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002).

The right to file a habeas motion under 28 U.S.C. § 2255 is not without limits. Pursuant to 28 U.S.C. § 2255(f), there is a one-year period in which a prisoner has to file a Section 2255 motion. The limitation period runs from the latest of four events, two of which are relevant to this action: "the date on which the judgment of conviction becomes final" or "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(1), (4). For a federal criminal defendant who does not file a petition for a writ of certiorari with the United States Supreme Court on direct review, the judgment of conviction becomes final, and the one-year limitation period starts to run, when the time for seeking certiorari review expires. Clay v. United States, 537 U.S. 522, 532 (2003). A party has ninety (90) days from the entry of the Court of Appeals' judgment to petition the United States Supreme Court for certiorari. Sup. Ct. R. 13(1).

B. 28 U.S.C. § 2241

It is well-established that "'challenges brought by federal prisoners that implicate the fact or duration of confinement but do not stem from the original conviction or sentence can be brought only under 28 U.S.C. § 2241.'" Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (quoting Walker v. O'Brien, 216 F.3d 626, 632-33 (7th Cir. 2000)); see United States v. Hutchings, 835 F.2d 185, 186-87 (8th Cir. 1987) (Defendant's "attack on the execution of his sentence is properly cognizable in a 28 U.S.C. § 2241(a) habeas petition). As the Eighth Circuit noted in Hutchings, "[i]f the petitioner were being illegally detained, his remedy was by way of a petition for writ of habeas corpus under 28 U.S.C. §2241(a) . . . ." 835 F.2d at 186 (citing Lee v. United States, 501 F.2d 494, 500 (8th Cir. 1974)). Stated another way, "a petitioner challenging the manner, location, or conditions of [the] sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. ยง 2241." Feist v. Schultz, 2006 WL 657003, ...


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