1 WO MH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Phillip T. Charleston, No. CV 21-01835-PHX-JAT (ESW) 10 Petitioner, 11 v. ORDER 12 Russell Heisner, 13 Respondent.
14 15 Petitioner Phillip T. Charleston, who is confined in the Federal Correctional 16 Institution-Phoenix, has filed a pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas 17 Corpus by a Person in Federal Custody (Doc. 1) and a Supplemental Memorandum of Law 18 in Support (Doc. 10). On January 18, 2022, Petitioner paid the filing fee. The Court will 19 require an answer to the Petition. 20 I. Background 21 Following a jury trial in the United States District Court for the Northern District of 22 Indiana, Petitioner was found guilty of two counts of carrying a firearm during a violent 23 crime, in violation of 18 U.S.C. § 924(c)(1); obstructing commerce by robbery, in violation 24 of 18 U.S.C. § 1951; carjacking, in violation of 18 U.S.C. § 2119; and being a felon in 25 possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). United States v. Charleston, 26 2-01-CR-00048-JTM (N.D. Ind.), Doc. 43. On September 26, 2002, Petitioner was 27 convicted and sentenced to a combination of concurrent and consecutive prison terms 28 totaling 492 months. Id., Doc. 71. Petitioner filed an appeal, and on April 28, 2003, the 1 Seventh Circuit Court of Appeals granted counsel’s motion to withdraw pursuant to Anders 2 v. California, 386 U.S. 738 (1967), and dismissed Petitioner’s appeal as frivolous. United 3 States v. Charleston, 63 F. App’x 951, at *2 (7th Cir. 2003). Petitioner then filed a petition 4 for a writ of certiorari, which the United States Supreme Court denied on November 10, 5 2003. Charleston v. United States, 540 U.S. 1010 (2003). 6 Petitioner’s first § 2255 motion was denied by the sentencing court on January 9, 7 2006. United States v. Charleston, 2-01-CR-00048-JTM (N.D. Ind.), Doc. 111. His 8 second § 2255 motion (filed while the first motion was still pending) was denied on January 9 31, 2005. Id., Doc. 94. Petitioner subsequently filed several motions for relief from 10 judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, all of which were 11 summarily dismissed as unauthorized second or successive § 2255 motions. United States 12 v. Charleston, 2-01-CR-00048-JTM (N.D. Ind.), Docs. 168, 176, 211. Petitioner’s related 13 efforts to obtain a certificate of appealability from the Seventh Circuit Court of Appeals 14 were unsuccessful. See Charleston v. United States, Nos. 08-2033, 10-1284, 11-2069, 11- 15 2477, 11-2069, 14-1131 (7th Cir.). In its penultimate order denying Petitioner leave to file 16 a second or successive collateral attack, the Seventh Circuit imposed a $5,000 fine on 17 Petitioner for filing frivolous papers and barred him from filing further suits in that circuit 18 until he had paid the fine, stating, 19 Until [Petitioner] pays [$5,000] in full to the clerk of this court, he is barred from filing further civil suits in the courts of this 20 circuit in accordance with Support Sys. Int’l v. Mack, 45 F.3d 21 185 (7th Cir. 1995), and any papers he submits attacking his current criminal judgment, including any future collateral 22 attacks, shall be returned unfiled. Any applications for 23 authorization to file collateral attacks will be deemed denied on the 30th day unless the court orders otherwise. 24 25 Charleston v. United States, No. 14-1131 (7th Cir.), Doc. 3.1 26 27 1 Petitioner’s final application for a certificate of appealability was filed through counsel following the district court’s dismissal of a successive § 2255 motion filed pursuant 28 to Johnson v. United States, 135 S. Ct. 2251 (2015). See Charleston v. United States, No. 16-2692 (7th Cir.), Doc. 5; United States v. Charleston, 2-01-CR-00048-JTM (N.D. Ind.), 1 II. Petition 2 Petitioner raises one ground for relief, alleging he is actually innocent of his 3 conviction under 18 U.S.C. § 922(g), in light of the Supreme Court’s determination in 4 Rehaif v. United States, 139 S. Ct. 2191 (2019), that a conviction under this statute requires 5 a defendant to know both that he “engaged in the relevant conduct” by possessing a firearm 6 and that he “fell within the relevant status.” Rehaif, 139 S. Ct. at 2194; 18 U.S.C. 7 § 922(g)(1). 8 As noted above, Petitioner was convicted pursuant to 18 U.S.C. § 922(g)(1), which 9 prohibits possession of a firearm by a person “who has been convicted in any court of[] a 10 crime punishable by imprisonment for a term exceeding one year.” According to 11 Petitioner, he did not know on July 13, 2000, the date his federal crimes were committed, 12 that his underlying conviction was punishable by a term of imprisonment exceeding one 13 year because he was not convicted on the underlying charge until August 8, 2000, and was 14 sentenced at that time to a suspended prison term of two years and eight months, which 15 meant he was only required to serve probation. Petitioner claims that he has not had an 16 unobstructed procedural shot at pursuing this claim because Rehaif was not decided until 17 after he had already exhausted his direct appeal and first §2255 motion. 18 The Court will require Respondent to answer the Petition. 19 III. Warnings 20 A. Address Changes 21 Petitioner must file and serve a notice of a change of address in accordance with 22 Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 23 for other relief with a notice of change of address. Failure to comply may result in dismissal 24 of this action. 25 . . . . 26 . . . . 27
28 Doc. 243. The Seventh Circuit denied Petitioner’s application after obtaining briefing from both parties. See Charleston v. United States, No. 16-2692 (7th Cir.), Doc. 5. 1 B. Copies 2 Petitioner must serve Respondent, or counsel if an appearance has been entered, a 3 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 4 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner 5 must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to 6 comply may result in the filing being stricken without further notice to Petitioner. 7 C. Possible Dismissal 8 If Petitioner fails to timely comply with every provision of this Order, including 9 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 10 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 11 for failure to comply with any order of the Court).
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1 WO MH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Phillip T. Charleston, No. CV 21-01835-PHX-JAT (ESW) 10 Petitioner, 11 v. ORDER 12 Russell Heisner, 13 Respondent.
14 15 Petitioner Phillip T. Charleston, who is confined in the Federal Correctional 16 Institution-Phoenix, has filed a pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas 17 Corpus by a Person in Federal Custody (Doc. 1) and a Supplemental Memorandum of Law 18 in Support (Doc. 10). On January 18, 2022, Petitioner paid the filing fee. The Court will 19 require an answer to the Petition. 20 I. Background 21 Following a jury trial in the United States District Court for the Northern District of 22 Indiana, Petitioner was found guilty of two counts of carrying a firearm during a violent 23 crime, in violation of 18 U.S.C. § 924(c)(1); obstructing commerce by robbery, in violation 24 of 18 U.S.C. § 1951; carjacking, in violation of 18 U.S.C. § 2119; and being a felon in 25 possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). United States v. Charleston, 26 2-01-CR-00048-JTM (N.D. Ind.), Doc. 43. On September 26, 2002, Petitioner was 27 convicted and sentenced to a combination of concurrent and consecutive prison terms 28 totaling 492 months. Id., Doc. 71. Petitioner filed an appeal, and on April 28, 2003, the 1 Seventh Circuit Court of Appeals granted counsel’s motion to withdraw pursuant to Anders 2 v. California, 386 U.S. 738 (1967), and dismissed Petitioner’s appeal as frivolous. United 3 States v. Charleston, 63 F. App’x 951, at *2 (7th Cir. 2003). Petitioner then filed a petition 4 for a writ of certiorari, which the United States Supreme Court denied on November 10, 5 2003. Charleston v. United States, 540 U.S. 1010 (2003). 6 Petitioner’s first § 2255 motion was denied by the sentencing court on January 9, 7 2006. United States v. Charleston, 2-01-CR-00048-JTM (N.D. Ind.), Doc. 111. His 8 second § 2255 motion (filed while the first motion was still pending) was denied on January 9 31, 2005. Id., Doc. 94. Petitioner subsequently filed several motions for relief from 10 judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, all of which were 11 summarily dismissed as unauthorized second or successive § 2255 motions. United States 12 v. Charleston, 2-01-CR-00048-JTM (N.D. Ind.), Docs. 168, 176, 211. Petitioner’s related 13 efforts to obtain a certificate of appealability from the Seventh Circuit Court of Appeals 14 were unsuccessful. See Charleston v. United States, Nos. 08-2033, 10-1284, 11-2069, 11- 15 2477, 11-2069, 14-1131 (7th Cir.). In its penultimate order denying Petitioner leave to file 16 a second or successive collateral attack, the Seventh Circuit imposed a $5,000 fine on 17 Petitioner for filing frivolous papers and barred him from filing further suits in that circuit 18 until he had paid the fine, stating, 19 Until [Petitioner] pays [$5,000] in full to the clerk of this court, he is barred from filing further civil suits in the courts of this 20 circuit in accordance with Support Sys. Int’l v. Mack, 45 F.3d 21 185 (7th Cir. 1995), and any papers he submits attacking his current criminal judgment, including any future collateral 22 attacks, shall be returned unfiled. Any applications for 23 authorization to file collateral attacks will be deemed denied on the 30th day unless the court orders otherwise. 24 25 Charleston v. United States, No. 14-1131 (7th Cir.), Doc. 3.1 26 27 1 Petitioner’s final application for a certificate of appealability was filed through counsel following the district court’s dismissal of a successive § 2255 motion filed pursuant 28 to Johnson v. United States, 135 S. Ct. 2251 (2015). See Charleston v. United States, No. 16-2692 (7th Cir.), Doc. 5; United States v. Charleston, 2-01-CR-00048-JTM (N.D. Ind.), 1 II. Petition 2 Petitioner raises one ground for relief, alleging he is actually innocent of his 3 conviction under 18 U.S.C. § 922(g), in light of the Supreme Court’s determination in 4 Rehaif v. United States, 139 S. Ct. 2191 (2019), that a conviction under this statute requires 5 a defendant to know both that he “engaged in the relevant conduct” by possessing a firearm 6 and that he “fell within the relevant status.” Rehaif, 139 S. Ct. at 2194; 18 U.S.C. 7 § 922(g)(1). 8 As noted above, Petitioner was convicted pursuant to 18 U.S.C. § 922(g)(1), which 9 prohibits possession of a firearm by a person “who has been convicted in any court of[] a 10 crime punishable by imprisonment for a term exceeding one year.” According to 11 Petitioner, he did not know on July 13, 2000, the date his federal crimes were committed, 12 that his underlying conviction was punishable by a term of imprisonment exceeding one 13 year because he was not convicted on the underlying charge until August 8, 2000, and was 14 sentenced at that time to a suspended prison term of two years and eight months, which 15 meant he was only required to serve probation. Petitioner claims that he has not had an 16 unobstructed procedural shot at pursuing this claim because Rehaif was not decided until 17 after he had already exhausted his direct appeal and first §2255 motion. 18 The Court will require Respondent to answer the Petition. 19 III. Warnings 20 A. Address Changes 21 Petitioner must file and serve a notice of a change of address in accordance with 22 Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 23 for other relief with a notice of change of address. Failure to comply may result in dismissal 24 of this action. 25 . . . . 26 . . . . 27
28 Doc. 243. The Seventh Circuit denied Petitioner’s application after obtaining briefing from both parties. See Charleston v. United States, No. 16-2692 (7th Cir.), Doc. 5. 1 B. Copies 2 Petitioner must serve Respondent, or counsel if an appearance has been entered, a 3 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 4 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner 5 must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to 6 comply may result in the filing being stricken without further notice to Petitioner. 7 C. Possible Dismissal 8 If Petitioner fails to timely comply with every provision of this Order, including 9 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 10 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 11 for failure to comply with any order of the Court). 12 IT IS ORDERED: 13 (1) The Clerk of Court must serve a copy of the Summons, the Petition (Doc. 1), 14 the Supplemental Memorandum of Law (Doc. 10), and this Order upon the United States 15 Attorney for the District of Arizona by certified mail addressed to the civil process clerk at 16 the office of the United States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of 17 Civil Procedure. The Clerk of Court must also send by certified mail a copy of the 18 Summons, the Petition, the Supplemental Memorandum of Law, and this Order to the 19 United States Attorney General pursuant to Rule 4(i)(1)(B) and to Respondent pursuant to 20 Rule 4(i)(2) of the Federal Rules of Civil Procedure. 21 (2) Respondent Russell Heisner must answer the Petition within 20 days of the 22 date of service. Respondent shall not file a dispositive motion in place of an answer without 23 first showing cause as to why an answer is inadequate. 24 (3) Regarding courtesy copies of documents for chambers, Respondent is 25 directed to review Section II(D) of the Court’s Electronic Case Filing Administrative 26 Policies and Procedures Manual, which requires that “a courtesy copy of the filing, 27 referencing the specific document number, shall be printed directly from CM/ECF.” 28 CM/ECF Admin. Man. § II(D)(3) (emphasis added). See http://www.azd.uscourts.gov/ | sites/default/files/documents/adm% 20manual.pdf. 2 (4) Petitioner may file a reply within 30 days from the date of service of the answer. 4 (5) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. 7 Dated this 16th day of February, 2022. 8 9 '
ll _ James A. Teil Org Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28