United States District Court, E.D. Virginia, Norfolk Division
JOSHUA A. UERKVITZ, Petitioner,
ERIC D. WILSON, Warden, FCI Petersburg, Medium, Respondent.
REPORT AND RECOMMENDATION
Lawrence R. Leonard United States Magistrate Judge.
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.
FACTUAL AND PROCEDURAL BACKROUND
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).The terms of the Plea Agreement included
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. 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.
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)).
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).
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), 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)).
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.
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.
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.").
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).
This Court Lacks Jurisdiction to Consider Petitioner's
Remedy under § 2241
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 ...