United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION RECOMMENDATION
A. Pesto, United States Magistrate Judge.
pleading at ECF no. 2 8 that was docketed as a motion and
referred to me should be denied.
C. Faith was prosecuted in this court at the above criminal
case number for income tax evasion. He waived indictment and
pleaded guilty in December 2 015 and the Court sentenced
petitioner on June 30, 2016 to a 24-month term of
imprisonment followed by a 3-year term of supervised release,
together with restitution in the amount of $1, 590, 605.00.
There was no appeal. Faith has been released from
imprisonment and is currently under supervised release.
April 2 019, Faith filed a complaint at Faith v. United
States, No. 3:19-cv-64-KRG-KAP (W.D.Pa.), seeking a
declaratory judgment that he was not subject to the federal
income laws. That complaint was dismissed on June 18, 2019
and, so far, has not been appealed.
2019, Faith then sent the Clerk a document styled as a
"Petition for Redress of Grievances In the Nature of a
Private International Administrative Remedy." Because
the pleading at ¶31 through ¶33 asserts that this
court "had no authority or jurisdiction over" Faith
and his sentence was "void from its inception" the
Clerk construed it as a motion to vacate. The Court then
referred the matter to me.
as a motion to vacate, Faith's pleading is untimely
because it was filed well beyond the one-year limitations
period in 28 U.S.C.§ 2255(f)(1), and the later accrual
dates in Subsections 2255 (f) (2)- (4) are not relevant.
court cannot consider Faith's pleading as a petition for
a writ of habeas corpus under 28 U.S.C.§ 2241(c)(3)
because a motion to vacate a sentence pursuant to 2 8 U.S.C.S
22 55 is the presumptive and almost exclusive means for a
federal defendant to challenge the validity of a conviction
and sentence. As 28 U.S.C.S 2255(e) states:
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.
circuit, a motion to vacate is an inadequate or ineffective
remedy only when there is a new precedential interpretation
of the statute under which the petitioner was convicted, that
interpretation negates criminal liability for
petitioner's conduct, and that interpretation has come
after the time to file a motion to vacate has expired or
after an unsuccessful first motion to vacate and the claim
(one of substantive statutory interpretation) In opposition
to Plaintiff's Motion to Remand, does not fall within the
scope of 28 U.S.C.S 2255(h) (1) or (2) . See In
re Dorsainvil, 119 F.3d 245 (3d Cir.1997), Abuhouran
v. Grondolsky, 392 Fed.Appx. 78 (3d Cir.2010),
United States v. Tyler, 732 F.3d 241 (3d Cir.2013);
cf. Parker v. Warden, 596 Fed.Appx. 164 (3d
Cir.2015)(rejecting the extension of Dorsainvil to
an Alleyne claim.) That has not happened.
claim is not within the limited exception to the exclusivity
of Section 2255 for the additional reason that it is
frivolous. Faith does not claim that his guilty plea was
involuntary or failed to admit all of the factual and legal
elements necessary to support the judgment of guilt. As the
Supreme Court stated in United States v. Broce, 488
U.S. 563, 569 (1989):
A plea of guilty and the ensuing conviction comprehend all of
the factual and legal elements necessary to sustain a
binding, final judgment of guilt and a lawful sentence.
Accordingly, when the judgment of conviction upon a guilty
plea has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary. If the
answer is in the affirmative then the conviction and the
plea, as a general rule, foreclose the collateral attack.
There are exceptions where on the face of the record the
court had no power to enter the conviction or impose the
See also Tollett v. Henderson, 411 U.S. 258, 267
Faith does not make a claim of ineffective counsel, he is
left under Broce with the one nonwaivable claim that
the court lacked subject-matter jurisdiction, that is the
authority to hear a given type ...