Larsen v. Barr

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GEORGE LARSEN,

Petitioner,

v. Civil Action No. 20-840 (RDM)

MERRICK B. GARLAND, 1

Respondent.

MEMORANDUM OPINION AND ORDER

Petitioner George Larsen, a federal prisoner, filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. 1. Among other things, he alleges that his

detention is unconstitutional because his sentencing court (the United States District Court for

the Eastern District of California, id. at 5) lacked jurisdiction and because the relevant federal

officials lacked authority to prosecute him. Id. at 50–95.

On April 2, 2020, the Court dismissed Larsen’s petition. Dkt. 2. The Court explained

that “[t]he general rule is that a ‘federal prisoner, who attacks the legality of his sentence or

conviction,’ must first file a motion pursuant to 28 U.S.C. § 2255 before ‘petitioning for a writ of

habeas corpus’ under § 2241.” Id. at 1 (quoting Pradelski v. Hawk-Sawyer, 36 F. Supp. 2d 1, 2

(D.D.C. 1999)). Larsen had not first filed a § 2255 motion, however, rendering his motion

§ 2241 premature. Id. at 1–2. Moreover, even if Larsen’s petition could have itself been

construed “as a habeas petition brought under 28 U.S.C. § 2255,” the Court further explained

that it was “not the ‘court which sentenced’ [Larsen], and thus [that it could not] entertain his

1 Merrick B. Garland, the current Attorney General, is substituted for William P. Barr pursuant to Federal Rule of Civil Procedure 25(d). [§ 2255] petition” either. Id. at 3 (quoting Taylor v. U.S. Bd. of Parole, 194 F.2d 882, 883 (D.C.

Cir. 1952)).

Larsen now moves under Federal Rule of Civil Procedure 52(b) to alter or amend the

Court’s order and judgment. Dkt. 4. In doing so, Larsen reiterates the same argument that he

originally made and that the Court has already rejected—that is, that he is not challenging his

sentence but instead the legality of his confinement, and thus, he need not file a § 2255 motion.

Id. at 3. Larsen also argues that the Court’s prior Memorandum Opinion suffered from the

following defects: (1) the Court’s reasoning relied on caselaw which, Larsen contends, “is not

identified as an element of the ‘Supreme Law of the Land’” upon which judges may rely; id. at

19 (emphasis omitted); see also id. at 2; (2) the Court substituted the “United States Federal

Government as respondent for . . . William Barr,” id. at 3; (3) the Court offered its own

testimony onto the record in violation of Federal Rule of Evidence 605; id.; (4) the Court did not

require Respondent to file a response to Larsen’s petition; (5) the Court “ha[d] a clear bias

against” Larsen, id. at 5; 2 (6) the Court deprived Larsen of certain “inherent rights protected by

the Constitution,” id.; and, finally, (7) the Court’s decision was devoid of any factual or legal

basis, id. at 6–7.

None of these arguments is persuasive. As the Court made clear in its prior opinion, and

as courts have repeatedly held, absent certain exceptions not present here, “[a] challenge to the

petitioner’s conviction or sentence must be made in the sentencing court under 28 U.S.C.

§ 2255.” Judd v. Gonzales, No. 13-cv-1504, 2013 WL 5615049, at *1 (D.D.C. Oct. 15, 2013).

2 Larsen has not moved to recuse the undersigned judge. The Court notes, however, that mere disagreement with a judge’s rulings—the basis for Larsen’s claim of bias in this case—does not provide an appropriate basis for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion” that would require a judge’s recusal.). 2 “[O]nly thereafter . . . [may] the challenge . . . be brought under 28 U.S.C. § 2241 as a petition

for a writ of habeas corpus lodged in the district court that has personal jurisdiction over the

prisoner’s immediate custodian.” Twitty v. Holder, No. 10-cv-174, 2010 WL 364343, at *1

(D.D.C. Jan. 29, 2010) (citing 28 U.S.C. § 2255; Wilson v. Office of Chairperson, D.C. Bd. of

Parole, 892 F. Supp. 277, 279 (D.D.C. 1995)). Here, Larsen argues “that a petition challenging

the legality of one’s detention has nothing whatsoever to do with a petition to vacate, set aside,

or correct a sentence.” Dkt. 4 at 6. But, on the very same page of his motion, he describes the

gravamen of his petition, asserting that the Attorney General “had no authority/jurisdiction to

investigation or prosecute” him. Id. Although he maintains that his claim “has nothing on God’s

green earth to do with a 28 U.S.C. § 2255 motion,” id., the Court disagrees. Larsen’s claim that

his detention is unlawful because he was prosecuted without authority is a challenge to his

conviction and sentence, and this “collateral attack on his conviction and sentence . . . must be

pursued . . . pursuant to 28 U.S.C. § 2255 in the sentencing court.” Fouche v. Mukasey, 296 Fed.

App’x 74, 74 (D.C. Cir. 2008) (per curiam). Only if that “remedy is inadequate or ineffective”

may a defendant seek relief under § 2241, and, even then, the defendant must do so “in the

judicial district where [his] custodian is located.” Id. Larsen cannot satisfy either of those

conditions here: the prospect that his claim is likely to fail on the merits does not mean that the

remedy provided in § 2255 is “inadequate or ineffective,” Perales v. Hawk, No. 99-5098, 1999

WL 728357, at *1 (D.C. Cir. Aug. 4, 1999), and, even if Larsen was entitled to petition under

§ 2241, he is not incarcerated in the District of Columbia.

3 Accordingly, it is hereby ORDERED that Larsen’s Motion to Alter Judgment, Dkt. 4, is

DENIED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: March 19, 2021