Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Russian v. United States

United States District Court, D. Kansas

March 28, 2019

JAMES D. RUSSIAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner James D. Russian's Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241(c)(1)(3) (Doc. 5). Russian has also asked the Court to enter default judgment in his favor (Doc. 10). For the reasons explained below, the Court dismisses Russian's habeas petition without prejudice and denies his motion for default judgment.

         I. Factual and Procedural Background

         On June 17, 2015, a jury convicted Russian of: (1) one count of being a felon knowingly in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2) one count of being a felon knowingly in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1); (3) knowingly possessing a firearm in furtherance of a drug trafficking crime, namely possession with intent to distribute a controlled substance, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) knowingly and intentionally possessing, with the intent to distribute, marijuana, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). On September 3, 2015, the Court sentenced Russian to a total term of 137 months' imprisonment on Counts 1-4, followed by two years of supervised release.

         Russian filed a direct appeal to the Tenth Circuit Court of Appeals, arguing that the Court erred in calculating his sentence. The Tenth Circuit agreed with Russian and remanded the case to this Court for resentencing. The Court resentenced Russian on July 17, 2017. This time, the Court sentenced Russian to 101 months' imprisonment followed by two years of supervised release. In addition, the Court denied Russian's motion to replace his appointed counsel.

         The following day, Russian filed a second appeal to the Tenth Circuit, arguing that the Court abused its discretion by denying his motion to replace appointed counsel and challenging two conditions of his supervised release. The Tenth Circuit affirmed the Court's denial of his request to replace counsel and the supervised release condition prohibiting Russian from engaging in activities that advocate the violation of the law. The Circuit vacated, however, the supervised release condition requiring Russian to participate in a substance abuse program. Specifically, the Tenth Circuit found that the Court “plainly erred by delegating the decision of whether Mr. Russian needs to participate in a residential treatment program to the probation office, ” because such delegation violates Article III of the U.S. Constitution. The Tenth Circuit remanded the case to this Court for resentencing with the instruction to consider “whether to reimpose this condition in compliance with Article III of the Constitution.”

         In compliance with these instructions, the Court conducted a second re-sentencing hearing on July 30, 2018. During the hearing, the Court decided not to impose any condition of substance abuse treatment upon Russian. Russian's counsel then notified the Court that Russian declined his representation. Addressing the Court personally, Russian asked the Court to take judicial notice of certain matters under Rule 201. The Court declined and ordered a new journal entry be prepared reflecting that the Court vacated the condition of supervised release requiring substance abuse treatment. Russian filed a third notice of direct appeal to the Tenth Circuit on August 13, 2018, which is still pending.

         Additionally, on October 26, 2018, Russian filed a petition for writ of certiorari to the Supreme Court on the issues he lost during his second appeal, i.e., the Tenth Circuit's affirmance of the Court's decision to deny him new counsel and the supervised release condition prohibiting him from engaging in activities that advocate the violation of the law. That petition for writ of certiorari was denied on December 3, 2018.

         Russian filed the instant habeas proceeding on October 18, 2017, during the time his second appeal to the Tenth Circuit was pending. Russian prepared this petition using the Form AO 242 (12/11) Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241. Russian states that the basis for his petition is “bad faith breach of contract, unlawful restraint of liberty, colour [sic] of authority based on the illegal ‘good faith' exception.” Russian asks the Court to find that he is being unlawfully imprisoned and “to restore his liberty.”

         On November 21, 2017, the Court issued an Order to Show Cause notifying the Government that Russian filed a habeas petition pursuant to § 2241 and ordering it to show cause as to why the petition should not be granted. Almost one month later, on December 18, 2017, Russian filed an Affidavit of Default and Default Judgment for a Sum That Can Be Made Certain By Computation, alleging that the undersigned is in default and requesting the Clerk to enter default judgment on his claim. On January 18, 2018, the Government timely filed its response to Russian's § 2241 petition.[1]

         II. Analysis

         A. Russian's Petition for Habeas Relief

         Russian's habeas petition is identified as one brought under 28 U.S.C. § 2241 when it should be brought under 28 U.S.C. § 2255. “Generally, § 2255 provides the exclusive remedy for a federal prisoner attacking the legality of his detention.”[2] The statute provides as follows:

A prisoner in custody under sentence of a (federal) court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or law of the United States . . . may move the court which imposed ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.