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Lester v. Shult

April 26, 2009

CLIFFORD LESTER, PETITIONER,
v.
DEBORAH G. SHULT, RESPONDENT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

The Clerk of the Court has sent Petitioner Clifford Lester's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, and his memorandum of law to the Court for its review. See Dkt. No. 1.*fn1

II. BACKGROUND

Petitioner brings this action to challenge his May 24, 2000 conviction for extortion in violation of 18 U.S.C. § 1951(b)(2) ("Hobbs Act extortion") in the United States District Court for the Southern District of New York. See Dkt. No. 1 at 2; see also United States v. Lester, No. 99-CR-1062. Petitioner was sentenced to serve 210 months in prison followed by three years of supervised release. See Dkt. No. 1 at 2; see also Lester, No. 99-CR-1062, at Dkt. No. 59. Petitioner states that his "subsequent appeal was unsuccessful." See Petitioner's Memorandum of Law at 2.

Petitioner also previously filed a motion pursuant to 28 U.S.C. § 2255 in the sentencing court, which that court denied on or about December 2, 2002, as "untimely and frivolous." See id. at 2; see also Lester, No. 99-CR-1062, Dkt. Nos. 68, 69, 73; Lester, No. 02-CV-9310. Petitioner appealed the denial of his section 2255 motion, which the Second Circuit treated as a motion to permit a second or successive section 2255. See Lester v. United States, No. 03-CV-3648. The Second Circuit denied that motion on January 12, 2004. See id.

Petitioner next filed a petition for a writ of habeas corpus, this time pursuant to 28 U.S.C. § 2241, in the United States District Court for the Northern District of West Virginia on November 24, 2004, while he was incarcerated at FCI Gilmer in Glenville, West Virginia. See Lester v. Wendt, No. 1:04-CV-00247, Dkt. No. 1, 2006 WL 3813554 (N.D. W. Va. Dec. 26, 2006), aff'd, No. 07-6774, 293 Fed. Appx. 231 (4th Cir. Sept. 15, 2008) (per curiam) (unpublished decision). Petitioner claimed that "(1) the government failed in its burden of proof as to all the elements of the charged Hobbs Act violation; and (2) he is actually, factually and legally innocent of violating the Hobbs Act." Lester, 2006 WL 3813554, at *1; see also Lester, No. 04-CV-247, Dkt. No. 1, at 5-9. Petitioner argued that, because he "never once obtained anything whatsoever from the complainant(s)," his conviction should be vacated "pursuant to the recent Supreme Court's decision clarifying federal statutory language." Lester,

No. 04-CV-247, Dkt. No. 1, at 5 (citing Scheidler v. National Organization for Women, 537 U.S. 393 (2003)).

In a Report and Recommendation issued on July 20, 2005, Magistrate Judge John S. Kaull recommended that the court deny and dismiss the petition with prejudice, finding that, because Petitioner was challenging the imposition of his sentence and not the execution of his sentence, he should have brought the petition as a section 2255 motion. See Lester, No. 04-CV-247, Dkt. No. 4, at 2. The court rejected Petitioner's attempt to challenge his conviction in a section 2241 petition based upon Scheidler, finding that Petitioner "failed to demonstrate that the Scheidler case deemed his conduct no longer criminal." See id. at 3. On December 26, 2006, District Court Judge Frederick P. Stamp, Jr. adopted the Report and Recommendation, agreeing that, because Petitioner was challenging the imposition of sentence, his relief lay in section 2255 and that Petitioner had not demonstrated that section 2255 was inadequate or ineffective to test the validity of his conviction. See Dkt. No. 7; Lester, 2006 WL 3813554, at *1. The court explained that

[t]he petitioner argues, in his § 2241 and in his objections to the magistrate judge's report and recommendation, that Scheidler v. National Organization for Women, 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed. 2d 991 (2003), affords him relief under § 2241. This Court disagrees. In Scheidler, the Supreme Court held that obtaining property under the Hobbs Act includes both a deprivation and an acquisition of property. Id. In Scheidler, the Supreme Court found that the defendants did not "obtain" or attempt to obtain property from the private plaintiff, thus the defendants did not commit extortion under the Hobbs Act. Id. In this case, the petitioner argues that his situation is similar to Scheidler because he did not attempt to obtain property from two of the government's witnesses, Louis Calicchia and Joseph Calicchia.

This Court finds that the petitioner has failed to demonstrate that the Scheidler case determined that his particular conduct was no longer criminal.

Id. Thus, the petitioner is not afforded relief under § 2241 because he failed to meet the second prong of the test stated in In re Jones, 226 F.3d at 328. Further, this Court finds that the petitioner's assertion that he is innocent of violating the Hobbs Act, without further evidence, does not prove that he is actually innocent. Accordingly, this Court finds that the petitioner's § 2241 petition must be denied.

Lester, 2006 WL 3813554, at *1-*2.

Petitioner next filed a document labeled as a petition for either a writ of audita querela or error coram nobis in the United States District Court for the Southern District of New York on February 23, 2009. See Lester v. United States District Court, No. 09-CV-1678, Dkt. No. 1. The district court characterized the petition as a section 2255 motion and transferred it to the Second Circuit for a determination of whether Petitioner should be permitted to file a second or successive section 2255 motion. See id. at Dkt. No. 2; see No. 09-0965-pr (2d Cir.). On April 8, 2009, Petitioner filed a document in the Second Circuit seeking remand of that case back to the district court, arguing that the district court had failed to consider whether section 2255 was an inadequate or ineffective remedy to challenge ...


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