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Russian v. English

United States District Court, D. Kansas

September 5, 2019

JAMES D. RUSSIAN, Petitioner,
v.
NICOLE C. ENGLISH, Warden, USP-Leavenworth, Respondent.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on James D. Russian's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 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 § 2241 petition.

         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). The Court originally sentenced Russian to a total term of 137 months' imprisonment on Counts 1-4, followed by two years of supervised release.

         Russian has filed three appeals to the Tenth Circuit.[1] 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.[2] Russian's third appeal is still pending before the Tenth Circuit.

         Russian 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.

         Russian 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 natural liberties."

         On July 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, [3] 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.

         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."[4] 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 sentence.[5]

         Accordingly, once a federal inmate has completed his direct criminal appeals, he may utilize § 2255 for any collateral challenge.[6]

         A habeas petition under § 2241 is not an "additional, alternative, or supplemental remedy to [] § 2255."[7] It serves a "different and distinct purpose[]" from a petition filed under § 2255.[8]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."[9] A district court "lacks jurisdiction to consider a ...


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