United States District Court, D. Kansas
JAMES D. RUSSIAN, Petitioner,
NICOLE C. ENGLISH, Warden, USP-Leavenworth, Respondent.
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
matter comes before the Court on James D. Russian's
Petition for Writ of Habeas Corpus Under 28 U.S.C. Â§ 2241(c)
(Doc. 1). Russian contends that he is being unlawfully
subjected to multiple sentences as a result of his conviction
in 2015. Additionally, Russian has filed a Petition for Writ
of Mandamus regarding this petition with the Tenth Circuit
Court of Appeals. This Order addresses both outstanding
petitions and denies Russian's Â§ 2241 petition.
Factual and Procedural Background
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). The Court originally sentenced Russian to a
total term of 137 months' imprisonment on Counts 1-4,
followed by two years of supervised release.
has filed three appeals to the Tenth Circuit. As a result of
the first appeal, the Court resentenced Russian to 101
months' imprisonment followed by two years of supervised
release. As a result of the second appeal, the Court modified
Russian's sentence by removing the condition of substance
abuse treatment. Russian's third appeal is still
pending before the Tenth Circuit.
has not limited his post-conviction filings to direct
appeals. He has also filed several petitions for
post-conviction relief. In October 2015, he filed a Motion to
Vacate Sentence under 28 U.S.C. § 2255, which the Court
denied without prejudice because Russian's first direct
appeal was pending at the time. Two years later, Russian
filed a habeas petition under 28 U.S.C. § 2241(c). The
basis for that petition was "bad faith breach of
contract, unlawful restraint of liberty, colour [sic] of
authority based on the illegal 'good faith'
exception." The Court denied this petition without
prejudice because it attacked an underlying federal
conviction or sentence and thus should have been brought
under 28 U.S.C. § 2255.
filed the current § 2241 petition in January 2019 on the
basis that he is "being twice subjected to punishments
for the same alleged offense and twice sentenced resting on
the same." He asks the Court to "vacate the
underlying convictions, as well as the multiplicitous [sic]
sentences based upon them, thereby restoring Petitioner's
18, 2019, Russian filed a Petition for Writ of Mandamus with
the Tenth Circuit. This petition alleges that the Court has
not taken any action on his § 2241 petition since it was
filed in January 2019 and sets forth the grounds for his
pending § 2241 petition. His requested relief is not
entirely clear,  but Russian presumably is asking the Tenth
Circuit to require the Court to take judicial notice of the
facts set forth in his § 2241 petition and provide the
same relief requested in his § 2241 petition. On August
29, the Tenth Circuit issued an order stating that the Court
had not taken any action on Russian's § 2241
petition since it was filed in January and inviting the Court
to respond to the mandamus petition within 30 days.
Russian's Petition for Habeas Relief
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." 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
the sentence to vacate, set aside or correct the
once a federal inmate has completed his direct criminal
appeals, he may utilize § 2255 for any collateral
habeas petition under § 2241 is not an "additional,
alternative, or supplemental remedy to  §
2255." It serves a "different and distinct
purpose" from a petition filed under §
2255.A § 2241 petition attacks the
execution of a sentence by challenging "matters that
occur at prison, such as deprivation of good-time credits and
other prison disciplinary matters." A district court
"lacks jurisdiction to consider a ...