United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
T. BABCOCK, SENIOR JUDGE.
Aaron Sandusky, is in the custody of the federal Bureau of
Prisons (BOP) at the Federal Prison Camp in Florence,
Colorado. He initiated this action on June 8, 2018, by filing
pro se a “Petition for Writ of Habeas Corpus
2241.” (ECF No. 1). Pursuant to an Order Directing
Applicant to Cure Deficiencies (ECF No. 3), Mr. Sandusky paid
the $5.00 filing fee on July 16, 2018 (ECF No. 4), and filed
an [Amended] Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 on the court-approved form on August
9, 2018. (ECF No. 7)
Background and Procedural History
2012, Mr. Sandusky was convicted by a jury in the United
States District Court for the Central District of California
of conspiracy to manufacture and possession with the intent
to distribute more than 1, 000 marijuana plants, and
possession with the intent to distribute at least 50
kilograms of a mixture or substance containing a detectable
amount of marijuana. (ECF No. 7 at 3). The convictions were
based on Applicant's activities as the president of a
California-based Medical Marijuana Cooperative.
(Id.). Applicant was sentenced to a 120-month prison
term. See United States v. Sandusky, No. 13-50025,
564 Fed.Appx. 282 (9th Cir. March 17, 2014). His
convictions and sentence were affirmed on direct appeal.
See Id. The United States Supreme Court denied
Applicant's petition for certiorari review in 2016.
See Sandusky v. United States, 137 S.Ct. 604 (Dec.
12, 2016). Mr. Sandusky thereafter filed a motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. §
2255, which was denied. See Sandusky v. United
States, No. 15-4352-PA (Criminal Action No.
12-cr-548-PA), 2015 WL 12724077 (C.D. Ca. Nov. 2, 2015). In
the § 2255 motion, Applicant asserted the following
claim for relief:
Petitioner's continued incarceration violates § 538
of the Consolidated and Further Continuing Appropriations
Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130,
2217 (2014), which provides that no “funds made
available ... to the Department of Justice may be used, with
respect to the [State] of ... California ... to prevent
[California] from implementing [its] own State laws that
authorize the use, distribution, possession, or cultivation
of medical marijuana” because his continued
incarceration has a chilling effect on the operation of
marijuana dispensaries in California; . . . .
Id. at *2. The sentencing court rejected this claim
as being outside the scope of § 2255, stating:
“Nothing about Petitioner's § 538 challenge
implicates the Court's jurisdiction to impose the
sentence or plausibly supports an inference that the sentence
was imposed in violation of the Constitution or laws of the
United States, or exceeded the maximum authorized by law.
Id. at *6. The district court further held that the
claim failed on its merits, reasoning that
“Petitioner's continued incarceration simply does
not violate § 538 because it is not an expenditure of
funds by the Department of Justice that prevents California
from implementing laws authorizing the use, distribution,
possession, or cultivation of medical marijuana.”
Id. Applicant did not seek a certificate of
appealability from the Ninth Circuit Court of Appeals. (ECF
No. 7 at 5).
Sandusky filed a § 2241 action in this Court on June 8,
2018. In the [Amended] Application, he claims that the
BOP's expenditure of funds to incarcerate him
“violates § 538 of the Consolidated and Further
Continuing Appropriations Act, 2015, Pub. L. No. 113-235 and
its successor, § 542 of the Consolidated Appropriations
Act, Pub. L. No. 115-31.” (ECF No. 7 at 3). For relief,
Applicant requests an evidentiary hearing to determine
whether his actions were wholly compliant with California
state medical marijuana laws at the time he was charged and
convicted of the federal crimes; and, if the court so finds,
a determination that the BOP's continuing expenditure of
funds to incarcerate him is unlawful and requires his
immediate release. (Id. at 7, 12).
August 20, 2018, Magistrate Judge Gordon P. Gallagher ordered
the Respondent to file a preliminary response to the
[Amended] Application addressing any jurisdictional issues
and procedural defenses. (ECF No. 8). After obtaining an
extension of time, Respondent filed a preliminary response on
October 9, 2018. (ECF No. 15). Applicant filed a reply on
October 17, 2018 (ECF No. 16; see also supplemental
reply, ECF No. 17).
Sandusky brings his claims under 28 U.S.C. § 2241. The
statute provides that “the writ of habeas corpus shall
not extend to a prisoner unless . . . he is in custody . . .
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). “A
petition under 28 U.S.C. § 2241 attacks the execution of
a sentence rather than its validity and must be filed in the
district where the prisoner is confined.” Bradshaw
v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
contrast, a prisoner's claim arises under 28 U.S.C.
§ 2255 if it is based on the following grounds:
the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.
28 U.S.C. § 2255(a). “A 28 U.S.C. § 2255
petition attacks the legality of detention . . . and must be
filed in the district that imposed the sentence.”
Bradshaw, 86 F.3d at 166 (citation omitted).
“The purpose of section 2255 is to provide a method of
determining the validity of a judgment by the court which
imposed the sentence, rather than by the court in the
district where the prisoner is confined.” Johnson
v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965) (per
habeas corpus application pursuant to 28 U.S.C. § 2241
“is not an additional, alternative, or supplemental
remedy, to the relief afforded by motion in the sentencing
court under § 2255.” Williams v. United
States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam).
Rather, “the so-called “savings clause”
contained in § 2255(e), . . . permits a federal prisoner
to proceed under § 2241 [only] when the remedy under
§ 2255 is “inadequate or ineffective to test the
legality of his detention.” Abernathy v.
Wands,713 F.3d 538 (10th Cir. 2013)). See also
Prost v. Anderson, 636 F.3d 578, 583-84 (10th Cir.
2011). The remedy available pursuant to § 2255
is inadequate or ineffective only in “extremely limited
circumstances.” Caravalho v. Pugh, 177 F.3d
1177, 1178 (10th Cir. 1999). It is the petitioner's
burden to show that he meets § 2255(e)'s savings
clause. Prost, 636 F.3d at ...