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Uerkvitz v. Wilson

United States District Court, E.D. Virginia, Norfolk Division

February 25, 2018

ERIC D. WILSON, Warden, FCI Petersburg, Medium, Respondent.


          Lawrence R. Leonard United States Magistrate Judge.

         This matter is before the Court on pro se Petitioner Joshua A. Uerkvitz's ("Petitioner") Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 ("the Petition"), ECF No. 1, and the Respondent Eric D. Wilson's ("the Respondent") Amended Motion to Dismiss for Lack of Jurisdiction ("Motion to Dismiss"), ECF No. 21. The Motion was referred for disposition to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. For the following reasons, the undersigned RECOMMENDS that the Petition, ECF No. 1, be DISMISSED WITH PREJUDICE FOR LACK OF JURISDICTION. In making this recommendation, the undersigned notes that Petitioner is not precluded from requesting permission from the Second Circuit to file a second § 2255 petition in the sentencing court.


         On June 17, 2008, in the U.S. District Court for the Western District of New York, Petitioner pleaded guilty to a single count information charging him with knowingly possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). See ECF No. 11 ("Plea Agreement") at 1, 4, ¶¶ 1, 6a, United States v. Uerkvitz (Uerkvitz I), No. 6:08-cr-6132 (W.D.N.Y.June 18, 2008).[1]The terms of the Plea Agreement included several stipulations.

         First, Petitioner stipulated that he had a prior conviction for aggravated sexual abuse/sexual abuse/abusive sexual contact involving a minor, thus subjecting Petitioner to enhanced penalties under 18 U.S.C. § 2252A(b)(2), to include a mandatory minimum often (10) years of incarceration. Plea Agreement at 2, ¶ 2.[2] Petitioner also stipulated that he possessed pornographic material depicting a prepubescent minor or a minor under the age of twelve years, and agreed that the inclusion of this stipulated fact in the Statement of Facts supporting his plea subjected him to a two level sentencing enhancement under U.S.S.G. § 2G2.2(b)(2). See Plea Agreement at 4, 5, ¶¶ 6a, 9a. Petitioner further stipulated that he was subjected to a two level enhancement pursuant to U.S.S.G. § 2G2.2(b)(6) for his use of a computer. See Plea Agreement at 5, ¶ 9c. Additionally, Petitioner stipulated that he was subject to a five level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse and exploitation of children. See Plea Agreement at 5, ¶ 9b. The parties further agreed that Petitioner should be sentenced to one hundred and twenty (120) months of incarceration, or the ten year minimum, and asked the District Court to bind itself thereto, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). See See Plea Agreement at 8, ¶ 15. See also Fed. R. Crim. P. 11(c)(1)(C) ("An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will . . . agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement.")). On December 5, 2008, Petitioner was sentenced in accordance with the Plea Agreement, to one hundred and twenty (120) months of incarceration with fifteen (15) years of supervised release. See ECF No. 18 ("Judgment in a Criminal Case") at 2-3, United States v. Uerkvitz (Uerkvitz I), No. 6:08-cr-6132 (W.D.N.Y. Dec. 5, 2008). Petitioner raised no objections at the time of sentencing and thereafter did not appeal the judgment.

         Seven years later, on February 27, 2015, Petitioner filed a pro se Motion and Memorandum in Support to Correct Clerical Errors Pursuant to Rule 36 of the Pre-Sentence Investigation Report. See ECF No. 20 ("Motion to Correct Clerical Errors") at 2-3, United States v. Uerkvitz (Uerkvitz I), No. 6:08-cr-6132 (W.D.N.Y. Feb. 27, 2015). Therein, Petitioner challenged the substantive application of his sentencing enhancements, rather than clerical or stenographic errors. For this reason, the District Court denied both Petitioner's Motion to Correct (ECF No. 20), as well as his Motion for Certificate of Appealability (ECF No. 24). See ECF No. 23 ("Order denying Motion to correct"), United States v. Uerkvitz (Uerkvitz I), No. 6:08-cr-6132 (W.D.N.Y. March 31, 2015); ECF No. 27 ("Order denying Motion for Certificate of Appealability"), United States v. Uerkvitz (Uerkvitz I), No. 6:08-cr-6132 (W.D.N.Y. May 4, 2015). Petitioner appealed the District Court's denial to the Second Circuit. On August 6, 2015, the Second Circuit issued an Order dismissing Petitioner's appeal based on the Court's sua sponte determination that "the appeal lack[ed] an arguable basis in law or fact" and "present[ed] no arguably meritorious issue for our consideration." United States v. Uerkvitz (Uerkvitz II), No. 15-1462 (2d Cir. Aug. 6, 2015) (citing Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995); Neitzke v. Williams, 490 U.S. 319, 325 (1989)).[3]

         On December 11, 2015, approximately one month after the Second Circuit's dismissal of his appeal became final, Petitioner filed a collateral attack in the District Court pursuant to 28 U.S.C. § 2255. See ECF No. 30 ("Motion to Vacate under 28 U.S.C. 2255"), United States v. Uerkvitz (Uerkvitz I), No. 6:08-cr-6132 (W.D.N.Y. Dec. 11, 2015). The District Court ultimately denied Petitioner's Section 2255 Motion, finding that "the time to bring this petition expired when petitioner's time to appeal expired ... in early 2010." ECF No. 38 ("District Court Order denying Motion to Vacate (2255) and dismissing as untimely"), United States v. Uerkvitz (Uerkvitz I), No. 6:08-cr-6132 (W.D.N.Y. Feb. 8, 2016).

         According to the instant Petition and submissions of the Respondent, Petitioner then moved the Second Circuit for leave to file a second or successive Section 2255 Motion, arguing (1) that the prosecution failed to disclose newly discovered evidence, namely a forensic computer report, which violated Brady v. Maryland', and (2) that under the new rule of law announced in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), Johnson v. United States, 135 S.Ct. 2551 (2015)[4], and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), certain prior violent and drug trafficking convictions no longer qualify as predicates for an enhanced sentence and this new rule applies to Petitioner's child pornography enhancements under § 2252A(b)(2). See ECF No. 1 at 4-7. See also ECF No. 20 at 3. On June 3, 2016, the Second Circuit denied Petitioner's Motion to file a second or successive section 2255 motion, remarking that the tenets of the Carachuri-Rosendo, Johnson, and Simmons decisions were inapplicable to Petitioner's convictions, but also noting that Petitioner failed to attach or provide details of the alleged forensic computer report, and also "failed to provide any evidence, new or otherwise, 'that, if proven .. . would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [him] guilty.'" See ECF No. 39 ("Second Circuit Mandate denying Motion to file second or successive 2255 motion") United States v. Uerkvitz (Uerkvitz I), No. 6:08-cr-6132 (W.D.N.Y. July 28, 2016) at 1-2 (citing 28 U.S.C. § 2255(h)(1)-(2)).

         On November 3, 2016, while incarcerated in Petersburg, Virginia, Petitioner filed the instant pro se Petition pursuant to Section 2241. ECF No. 1. Therein, Petitioner asserted essentially two, but interrelated grounds for relief: (1) that the Government failed to disclose "newly discovered evidence" in the form of the forensic computer report; and (2) that the evidence seized from Petitioner's computer amounted to fruit of the poisonous tree because the search and seizure of Petitioner's computer violated his Fourth Amendment rights. ECF No. 1 at 6-7.[5]

         On May 2, 2017, Petitioner filed a Motion asking this Court to essentially grant Petitioner a default judgment based on the Respondent's failure to respond, despite being ordered to do so on February 17, 2017. See ECF No. 9 (Petitioner's Motion to grant Petitioner's Request for Habeas Relief). See also ECF No. 7 (February 17, 2017 Order of Service upon Respondents). Upon receipt of Petitioner's Motion for Default Judgment, the Court immediately issued a second Order directing the United States Attorney for the Eastern District of Virginia, Norfolk Division, on behalf of the Respondent, to file a Motion for Leave to File a Response, as well as a Proposed Response to the Petition. ECF No. 10. The Respondent complied and the Court permitted the Respondent to belatedly file a Response and Roseboro Notice, as well as a subsequent request to file an Amended Motion to Dismiss. See ECF Nos. 11-21. Accordingly, the Respondent's Amended Motion to Dismiss (ECF No. 21) is the operative Motion before the Court. On June 30, 2017, Petitioner filed a Response to the Motion to Dismiss, which included Petitioner's Motion to Transfer Jurisdiction, ECF No. 22, to which the Respondent filed a Reply on July 12, 2017, ECF No. 23. Accordingly, both the Motion to Dismiss (ECF No. 21) and Petitioner's purported Motion to Transfer Jurisdiction (ECF No. 22) are ripe for recommended disposition.

         Additionally, the Court notes that via written Notice dated March 8, 2017, and docketed March 13, 2017, Petitioner notified the Court that he would be released from federal custody on March 10, 2017 and would reside in Rochester, New York in the Western District of New York under the terms of his supervised release. See ECF No. 8. See also ECF No. 20 at 4 n.l. As the Respondent notes, the fact that Petitioner was released from federal custody and relocated outside of the Eastern District of Virginia neither defeats jurisdiction nor prevents Petitioner from mounting a collateral attack on his conviction and term of supervised release because "[a]n individual on parole or on supervised release is considered 'in custody' for purposes of the habeas corpus petition." ECF No. 20 at 4 n.l (quoting Edwards v. Dunlap, No. 2:08CV306, 2009 WL 577492, at *2 (E.D. Va. Mar. 4, 2009) (adopting Report and Recommendation) (quoting Maleng v. Cook, 490 U.S. 488, 491 (1989); Jones v. Cunningham, 371 U.S. 236, 243 (1963))). See also Core v. Wilson, No. 2:15CV373, 2016 WL 2340855, at *2 (E.D. Va. Mar. 25, 2016) ("It is well established . . . that jurisdiction is determined when the petition for writ of habeas corpus is filed, and is not defeated by a subsequent transfer of the petitioner.") (citing United States v. Edwards, 27 F.3d 564 (4th Cir. 1994) (per curiam) (unpublished)), report and recommendation adopted, No. 2;I5CV373, 2016 WL 1752759 (E.D. Va. Apr. 29, 2016); Maxey v. Warden, FCIPetersburg, No. l;O9CV443LMB/TCB, 2010 WL 1703731, at *1 (E.D. Va. Apr. 26, 2010) ("Where, as here, a petitioner is released from custody after filing a § 2241 application, the petition is not ipso facto rendered moot. Instead, the inquiry focuses on whether the court nonetheless can grant petitioner the relief he requests.").

         Rather, this Court lacks jurisdiction to consider the Petition for other reasons, as detailed herein at Part II, infra. See also Core v. Wilson, No. 2;I5CV373, 2016 WL 2340855, at *3 (E.D. Va. Mar. 25, 2016) ("While Core's transfer to North Carolina does not defeat jurisdiction in this case, the Court does not have jurisdiction over Core's petition because it was not properly brought pursuant to section 2241."), report and recommendation adopted, No. 2;I5CV373, 2016 WL 1752759 (E.D. Va. Apr. 29, 2016).


         A. This Court Lacks Jurisdiction to Consider Petitioner's Remedy under § 2241

         Before evaluating the merits of Petitioner's Section 2241 request for habeas relief pursuant to Brady v. Maryland, or Fourth Amendment jurisprudence, this Court must ascertain whether it has jurisdiction over those claims. The Respondent contends that this Court does not, and should therefore dismiss the Petition with prejudice. ECF No. 20 at 4. The Court agrees. "A motion pursuant to 28 U.S.C. § 2255 provides the primary means of collateral attack on the imposition of a federal conviction and sentence." Gregory v. Wilson, No. 1:14CV1693 (TSE/MSN), 2015 WL 7571819, at *2 (E.D. Va. Nov. 23, 2015) (citing Rice v. Rivera,617 F.3d 802, 807 (4th Cir. 2010) ("[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their conviction and sentences through § 2255.")). See also ...

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