United States District Court, W.D. Pennsylvania
MICHAEL D. PAHUTSKI, Petitioner
MARC A. KIRBY Warden; UNITED STATES OF AMERICA, Respondents.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, Chief Magistrate Judge.
It is respectfully recommended that the Petition purportedly filed pursuant to 28 U.S.C. § 2241 for Writ of Habeas Corpus (the "Petition"), be dismissed pre-service for failing to show that it is jurisdictionally proper. A certificate of appealability should be denied.
Michael D. Pahutski ("Petitioner") is a federal prisoner currently incarcerated in the Federal Correctional Institution at Loretto ("FCI-Loretto").
In the instant Petition, Petitioner seeks to utilize a Section 2241 habeas petition to challenge the validity of his conviction under 18 U.S.C. §1346 for "honest-services theft" based on his argument that the decision by the United States Supreme Court in Skilling v. U.S., 561 U.S. 358 (2010) renders him actually innocent of the conviction. Petitioner's conviction was obtained in the United States District Court for the Western District of North Carolina. Because Petitioner fails to show that he had no prior opportunity to challenge his convictions under Skilling, given that Skilling was decided on June 24, 2010, and Petitioner was not sentenced until May 12, 2011, Petitioner fails to carry his burden to show that he is permitted to utilize a Section 2241 in order to attack the validity of his conviction.
B. Rule 4 - Pre-Service Dismissal
Even though the Respondents have not been formally served with process yet, this Court may, pursuant to Rule 4 of the Rules Governing Section 2254 cases ("Rule 4"),  dismiss the Petition if it plainly appears on its face that the Petitioner is not entitled to relief under habeas. Rule 4 provides in relevant part that:
The clerk must promptly forward the [habeas] petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
In interpreting Rule 4, the Advisory Committee Notes to Rule 4 state that:
28 U.S.C. § 2243 requires that the writ shall be awarded, or an order to show cause issued, "unless it appears from the application that the applicant or person detained is not entitled thereto." Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition.
In addition to ordering court records and/or opinions, a federal habeas court may, under Rule 4, take judicial notice of those court records, dockets and/or court opinions as well as its own court records. See, e.g., Barber v. Cockrell, 4:01-CV-0930, 2002 WL 63079, at *1 n.4 (N.D.Tex. Jan. 8, 2002) (in a Rule 4 case, the court took judicial notice of its own records of a prior habeas petition filed by the petitioner); United States ex. rel. Martin v. Gramley, No. 98 C 1984, 1998 WL 312014, at *1 (N.D. Ill. June 3, 1998) (in a Rule 4 summary dismissal, the court took "judicial notice of the opinion of the Illinois Appellate Court in this case."). In disposing of this Petition, we take judicial notice of the proceedings in Petitioner's conviction, direct appeal and Section 2255 proceedings and conclude that from the face of the Section 2241 Petition and these public records, Petitioner is not entitled to relief.
In the case at issue, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition should be dismissed pre-service because Petitioner fails to carry his burden to show that he is permitted to utilize Section 2241 in order to challenge his conviction given that he cannot show ...