The opinion of the court was delivered by: Judge Caputo
(MAGISTRATE JUDGE MANNION)
Before the Court is Magistrate Judge Mannion's report and recommendation ("R&R") (Doc. 11) on petitioner Martin's writ of habeas corpus petition brought under 28 U.S.C. § 2241 along with Mr. Martin's objections (Doc. 12). Mr. Martin argues that he is entitled to relief under § 2241 because collusion between the FBI and state authorities was tantamount to double jeopardy. He also claims new evidence showing the FBI threatened witnesses in his trial and withheld exculpatory evidence prove he was actually innocent. The magistrate judge recommended the petition be denied because the stringent requirements of § 2241 had not been met. The Court agrees and will deny the petition.
Mr. Martin is challenging his 2004 convictions in the United States District Court for the Western District of Texas on bank robbery charges. He is currently serving eight concurrent life sentences on those convictions. The petitioner filed a direct appeal of the judgment of conviction in the United States Court of Appeals for the Fifth Circuit which was affirmed by decision dated December 2, 2005. United States v. Martin, 431 F.3d 846 (5th Cir. 2005). A petition for writ of certiorari was denied by the United States Supreme Court on April 3, 2006. Martin v. United States, 547 U.S. 1059 (2006).
The Mr. Martin filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §2255, which was denied by the trial court on May 24, 2006. See Martin v. Outlaw, 2007 WL 1138830 (E.D.Tex.).
Mr. Martin then filed a petition for writ of habeas corpus pursuant to §2241 in the Eastern District of Texas in which he asserted that he was unlawfully confined because the federal government did not have a waiver of jurisdiction from the state and he was, therefore, innocent. Martin v. Outlaw, supra. By memorandum order dated April 17, 2007, that petition was dismissed as having been inappropriately brought pursuant to §2241. Id.
Mr. Martin proceeded to file a second §2241 petition in the United States District Court for the Northern District of West Virginia on January 26, 2009, in which he claimed:
(1) the government withheld exculpatory DNA evidence, violating his 5th, 6th, and 8th amendment rights and that he was innocent of all charges; (2) the FBI requested his arrest until completion of the federal investigation, violating his 5th, 6th, and 8th amendment rights and his right to due process; and (3) the government violated Title 18 U.S.C. §3000 by withholding DNA tests done by a state lab in violation of his right to due process. Martin v. Cross, 2009 WL 1034497 (N.D.W.Va.). By order dated April 16, 2009, the second petition was also dismissed as inappropriately being brought pursuant to §2241. Id.
On an unspecified date, Mr. Martin sought DNA testing in the district court which was denied. The petitioner moved to proceed in forma pauperis in the Fifth Circuit. The Fifth Circuit denied Mr. Martin's request to proceed in forma pauperis and dismissed the appeal as frivolous noting that the evidence of Mr. Martin's guilt was overwhelming and included testimony from the petitioner's co-defendants regarding his participation in the robberies, as well as letters written by the petitioner that amounted to a confession. The court further found that Mr. Martin had made no attempt to explain how DNA testing would raise a reasonable probability that he did not commit the bank robbery offense so as to satisfy the requirements of 18 U.S.C. §3600. United States v. Martin, 377 Fed. Appx. 395 (5th Cir. 2010). Mr. Martin filed a petition for writ of certiorari which was denied by the United States Supreme Court on October 4, 2010. Martin v. United States, 131 S.Ct. 357 (2010).
On May 3, 2011, Mr. Martin filed the instant habeas petition in which he argues that he can establish that he is actually innocent pursuant to the provisions of Schlup v. Delo, 513 U.S. 298 (1995). In support of his contention, Mr. Martin argues that he was subjected to double jeopardy in that he was originally indicted and held by the State of Texas on charges of robbing the Surety Bank in New Braunfels, Texas, but that the state charges were dismissed when he was subsequently indicted on federal charges in relation to the robberies. Mr. Martin argues that the FBI asked the State to charge and detain him pending completion of their investigation and that the state charges were therefore a "sham." Mr. Martin argues that the "reckless FBI investigation" led to his illegal detention.
In addition to the double jeopardy claim, Mr. Martin argues, without more, that the government openly threatened the petitioner and his brother; used tainted witnesses to obtain his conviction; and withheld three pieces of exculpatory evidence which violated his right to due process.
In his R&R, Magistrate Judge Mannion recommended Mr. Martin's petition be denied because he failed to show he was entitled to relief under § 2241's stringent standards. Mr. Martin's ...