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John F. Winkelman, Jr v. Archie B. Longley

October 17, 2011

JOHN F. WINKELMAN, JR., PETITIONER,
v.
ARCHIE B. LONGLEY, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

MEMORANDUM OPINION AND ORDER

John F. Winkelman, Jr. ("Petitioner") is currently incarcerated at FCI-McKean, which is located within this judicial district, serving a life sentence for drug and firearms convictions obtained in 2003, imposed by the United States District Court for the Middle District of Pennsylvania. Petitioner has filed what purports to be a habeas petition pursuant to 28 U.S.C. §2241, seeking not to challenge the execution of his sentences but the validity of his convictions. Because Petitioner cannot show that a Section 2255 motion is inadequate or ineffective to test the validity of his convictions, the present petition must be dismissed as jurisdictionally improper. Petitioner simply fails to show why he could not have previously brought the claims that he now raises herein. Petitioner does not offer any new evidence that would establish his actual innocence of the crimes for which he was convicted.

I.FACTUAL AND PROCEDURAL HISTORY

On September 25, 2001, Petitioner was charged in the Middle District of Pennsylvania with multiple counts of drug and firearms crimes. U.S.A. v. John Winkelman, No. 4:01-cr-00304 (M.D. Pa.).

On June 18, 2003, a jury in the Middle District of Pennsylvania found Petitioner guilty of seven counts related to narcotics trafficking and firearms charges. On December 12, 2003, the United States District Court for the Middle District of Pennsylvania ("the Sentencing Court") sentenced John Winkelman, Jr., to imprisonment for the remainder of his natural life. On May 18, 2006, the United States Court of Appeals for the Third Circuit ("the Court of Appeals") affirmed Petitioner‟s conviction and sentence. On February 23, 2007, Petitioner filed a motion and supporting brief under 28 U.S.C. § 2255 in the Sentencing Court. On March 10, 2008, the Sentencing Court denied Petitioner‟s Section 2255 motion. The Court of Appeals affirmed the Sentencing Court‟s denial of relief on July 10, 2008. On December 12, 2009, Petitioner filed with the Court of Appeals a motion pursuant to 28 U.S.C. § 2244, seeking permission to file a second or successive Section 2255 motion. The Court of Appeals denied Petitioner leave to file a second or successive Section 2255 motion on January 7, 2010 because "Petitioner has failed to make a prima facie showing that his new claims rest on a new rule of constitutional law or newly discovered evidence that, if proven, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of his underlying offenses. See 28 U.S.C. §§ 2244(b)(2) & 2255(h)." In Re: John F. Winkelman, Jr., C.A. No. 09-4736 (3d Cir. Jan. 7, 2010).

On January 11, 2011, Petitioner, proceeding pro se, filed the instant petition ("the Section 2241 Petition"), without payment of the fee, which was formally docketed only after payment of the filing fee, ECF No. [3], along with a brief in support. ECF No. [4]. By means of the Section 2241 Petition, he seeks to attack the validity of his convictions, not the execution of his sentence. Warden Archie B. Longley ("the Respondent") filed an Answer, ECF No. [11], pointing out that the present petition is jurisdictionally improper because Petitioner cannot attack the validity of convictions via a Section 2241 petition because he cannot show, under the facts of this case, that a Section 2255 motion is inadequate or ineffective to test the validity of his convictions. Petitioner filed a Traverse, arguing that he has established the inadequacy of a Section 2255 motion because he relies on newly discovered evidence, even though he readily concedes that it is not the kind of evidence that qualifies under Section 2255 to justify the filing of a second or successive Section 2255 motion. ECF No. [4] at 29 ("even though the Petitioner is claiming newly discovered evidence, . . . this newly discovered evidence is not enough that a jurist of reason would be able to find the Petitioner not guilty of the charges against him."). In other words, the Court takes this to be an admission that the so-called newly discovered evidence by Petitioner does not establish his actual innocence of the crimes for which he was convicted. After the Answer and Traverse were filed, this case was transferred to the undersigned. ECF No. [13].

All parties have consented to the Magistrate Judge‟s exercise of plenary jurisdiction in this case. ECF Nos. [6] and [9].

II.DISCUSSION

Petitioner essentially raises three issues in the present petition.

I. Was the Petitioner‟s right to due process under the Fifth Amendment, violated by the illegal restraint of the assets of Bank Account #0367-1305-894 and the $86,935.00, which was seized from the Petitioner on the day of his arrest?

II. Was the Petitioner denied his Sixth Amendment right to counsel of his choice by the illegal restraint of the assets at Bank Account #0367-1305-894 and the $86,935.00, which was seized from the Petitioner on the day of his arrest?

III. Was the Petitioner denied his Sixth Amendment right to effective assistance of counsel?

ECF No. [4] at 4.

Petitioner‟s three arguments are based upon the following allegations. First, Petitioner alleges that the prosecution through ex parte filings prior to Petitioner being formally indicted, sought seizure of assets and in those filings prosecution agents lied and perjured themselves, wrongly stating that the assets sought to be seized were connected to Petitioner‟s drug activities. Petitioner avers that such alleged government misconduct violated his Fifth Amendment right to due process. The Court takes this to mean that Petitioner is claiming a violation of his substantive due process rights, i.e., that his right to fundamental fairness was violated by government wrongdoing. See, e.g., ECF No. [4] at 17 & 19. However, it may also be that Petitioner is making a procedural due process claim as well. Id., at 20 to 21 ("The Petitioner contends, that for the government to deliberately withhold these assets, such as the Bank Account in question and the $86,935.00 that was seized from him on the day of his arrest, from him throughout this case, without a proper due process evidentiary hearing, violated the Petitioner‟s rights under the due process clause of the Fifth Amendment . . . .") (emphasis added). Second, Petitioner further contends that the seizure of his assets ...


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