Westine v. Perrill

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 24, 1997
• Docket: 96-1455
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit

JUL 24 1997 UNITED STATES COURT OF APPEALS

TENTH CIRCUIT PATRICK FISHER Clerk

JOHN G. WESTINE,

Petitioner - Appellant, No. 96-1455 v. (D. Colorado) W. A. PERRILL, Warden; UNITED (D.C. No. 96-Z-79) STATES OF AMERICA,

Respondents - Appellees.

ORDER AND JUDGMENT *

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. John G. Westine was tried and convicted in the United States District Court

for the Southern District of Ohio on charges of conspiracy, interstate

transportation of property taken by fraud, wire fraud, mail fraud, and money

laundering, and was sentenced on July 2, 1992, to 235 months in prison. The

money laundering count included a provision, pursuant to 18 U.S.C. § 982(a)(1),

for the forfeiture of various items of property, which was accomplished by order

dated July 15, 1992. On appeal, the Sixth Circuit affirmed the conviction,

sentence and forfeiture. See United States v. Westine, No. 92-3664, 1994 WL

88831 (6th Cir. March 17, 1994) (per curiam).

Westine then collaterally challenged his conviction and sentence pursuant

to 28 U.S.C. § 2255, arguing as follows:

(1) counsel rendered ineffective assistance, (2) the prosecution failed to disclose evidence favorable to the defense, (3) the forfeiture of his property in addition to his criminal conviction subjected him to double jeopardy, and (4) erroneous information in his presentence investigation report (PSI) was improperly used to enhance his sentence.

The district court denied Westine’s § 2255 motion, and the Sixth Circuit

affirmed in an opinion from which the foregoing facts have been derived. See

Westine v. United States, No. 95-3745, 1996 WL 456031 (6th Cir. Aug. 12,

1996).

In the proceeding before us, Westine, proceeding pursuant to 28 U.S.C.

§ 2241, continues to attack his conviction and sentence, making arguments

-2- virtually identical to those described above. The district court, adopting the

recommendation of the magistrate judge, dismissed Westine’s petition on the

ground that § 2241 cannot be used as a substitute for proceeding under § 2255.

Westine has filed at least eleven appeals in this court, several of which,

including this appeal, involve petitions invoking 28 U.S.C. § 2241. We have

already explained to Mr. Westine the purpose of § 2241, and the fact that attacks

on the legality of his conviction and sentence must be brought under § 2255 and

in the jurisdiction in which he was convicted. See Westine v. Perrill, No.

94-1533, 1995 WL 397065 (10th Cir. July 7, 1995); Westine v. Perrill, No.

95-1503, 1996 WL 719995 (10th Cir. Dec. 16, 1996); see also Bradshaw v. Story,

86 F.3d 164 (10th Cir. 1996).

We have reviewed the record and conclude that for substantially the same

reasons set out in the recommendation of the magistrate judge, filed February 1,

1996, the district court did not err in dismissing this petition for lack of

jurisdiction, or in denying an evidentiary hearing.

In the district court, Westine was permitted to proceed in forma pauperis

and, as indicated above, the court addressed the merits of his petition.

Subsequently, the district court denied leave to proceed on appeal in forma

pauperis on the ground that Westine had filed three or more frivolous actions and

was, accordingly, barred under 28 U.S.C. § 1915(g). At the time of that order, the

-3- district court did not have the benefit of our recent decision in McIntosh v. United

States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997), in which we held that

§ 2241 petitions are not civil actions for purposes of various subsections of 28

U.S.C. § 1915. However, a prisoner seeking to proceed in forma pauperis with a

§ 2241 petition does remain obligated to comply with the traditional requirements

of that section. Id. at 812. Accordingly, we treat the proceeding before us as a

renewed motion by Westine for leave to proceed on appeal in forma pauperis and,

for the reasons stated above, we deny that motion because the petition is

frivolous. See id. at 812-13 (citing DeBardeleben v. Quinlan, 937 F.2d 502 (10th

Cir. 1991) and Coppedge v. United States, 369 U.S. 438 (1962)).

DISMISSED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

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