Fly v. Peters

1 WO MDR [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 William Anthony Fly, No. CV-23-00103-TUC-SHR (EJM) 10 Petitioner, 11 v. ORDER 12 Collette S. Peters, et al., 13 Respondents. [14] 15 Self-represented Petitioner William Anthony Fly1 was confined in the United States 16 Penitentiary-Tucson when she filed her Petition Under 28 U.S.C. § 2241 for Writ of 17 Habeas Corpus by a Person in Federal Custody (Doc. 1).2 The Court will dismiss the 18 Petition and this action for the reasons below. 19 I. Jurisdictional Issue 20 In a May 9, 2023 Order, the Court denied Petitioner’s Application to Proceed In 21 Forma Pauperis because Petitioner had more than $25.00 in her inmate account. (Doc. 6); 22 see also LRCiv 3.5(c). The Court gave Petitioner 30 days to pay the $5.00 filing fee. (Doc. 23 6.) On May 30, 2023, Petitioner appealed the May 9 Order. (Doc. 8.) The following day, 24 she paid the filing fee. (Doc. 9.) 25 In a November 16, 2023 Order, the Ninth Circuit Court of Appeals summarily 26 affirmed the May 9 Order, concluding “the questions raised in this appeal are so [28] 1 Petitioner is transgender and is also known as Toni Fly. 2 Petitioner was transferred several times after she filed her Petition. She is currently confined in Florida. 1 insubstantial as to not require further argument.” (Doc. 15.) Thus, to the extent Petitioner’s 2 appeal divested this Court of jurisdiction over this action, jurisdiction has been restored 3 pursuant to the Ninth Circuit’s mandate. (Id.) 4 II. Petitioner’s Litigation History 5 A. Criminal Case and Appeal3 6 Pursuant to a plea agreement, Petitioner pleaded guilty in United States v. Fly, 7 CR-16-00184-DLH (D.N.D.), to transportation with intent to engage in criminal sexual 8 activity, in violation of 18 U.S.C. § 2421 (a). The trial court sentenced Petitioner to a 1209 month term of imprisonment, followed by supervised release for life. One of the 10 supervised release conditions required Petitioner to comply with the requirements of the 11 Sex Offender Registration and Notification Act. The trial court subsequently amended the 12 judgment to impose restitution. After Petitioner appealed, the Eighth Circuit Court of 13 Appeals granted the government’s motion to dismiss the appeal on the basis that 14 Petitioner’s appellate claims fell within the scope of the appeal waiver in her plea 15 agreement. 16 B. Section 2255 Motion4 17 Petitioner then filed a motion pursuant to 28 U.S.C. § 2255 . In an April 7, 2020 18 Order, the trial court denied the motion, concluding Petitioner’s conditions of confinement 19 claims were outside the scope of a § 2255 proceeding and finding Petitioner was not 20 entitled to relief on her claims of ineffective assistance of counsel, claims of cruel and 21 unusual punishment, and claims regarding the plea agreement, guilty plea, and 22 sentencing. After Petitioner appealed, the Eighth Circuit Court of Appeals declined to 23 issue a certificate of appealability and dismissed the appeal. [24] 25 3 The relevant docket entries in CR-16-00184-DLH (D.N.D.) discussed in this section are the judgment (Doc. 88), notice of appeal (Doc. 92), amended judgment (Doc. 26 103), and Eighth Circuit order (Doc. 105). The Eighth Circuit case is United States v. Fly, 18-1504 (8th Cir.), and the government’s motion to dismiss was filed on May 31, 2018. 27 4 The relevant docket entries in CR-16-00184-DLH (D.N.D.) discussed in this section are the § 2255 motion (Doc. 109), dismissal order (Doc. 132), notice of 28 appeal (Doc. 137), and Eighth Circuit order (Doc. 141). The Eighth Circuit case is Fly v. United States, 20-1955 (8th Cir.). 1 C. First § 2241 Petition5 2 Petitioner next filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 3 in the Central District of Illinois, Fly v. Warden, CV-20-01412-CSB (C.D. Ill.).6 In a 4 December 14, 2020 Order, the court noted Petitioner had raised claims regarding her 5 conditions of confinement, conviction, and sentence. The court dismissed the petition, 6 concluding Petitioner’s complaints about her conditions of confinement could not proceed 7 in a habeas corpus petition and her collateral attacks on her conviction and sentence could 8 not be brought under § 2241. 9 The court identified Petitioner’s conditions of confinement claims as follows: 10 Bureau of Prisons (BOP) staff had incited physical and sexual assaults against her and 11 retaliated against her by putting her in cells with violent individuals; she had been sexually 12 assaulted numerous times while in custody and was under a continuous threat of imminent 13 sexual, physical, mental, and emotional assaults; her placement in cold cells amounted to 14 cruel and unusual punishment due to her Raynaud’s disease; she was denied HIV treatment 15 and hormone replacement therapy; the facility “subjected” her to COVID-19; she had been 16 retaliated against in violation of the First Amendment; and her placement in a male prison 17 and the denial of medical care amounted to cruel and unusual punishment. The court 18 concluded these claims did not impact the length of her incarceration, could not be raised 19 in a habeas corpus action, and needed to be raised in a civil rights action. The Court noted 20 Petitioner had already filed two civil rights actions and it was unclear if her § 2241 petition 21 was raising claims that were not already being addressed in those lawsuits. 22 The court identified Petitioner’s claims regarding her conviction and sentence as 23 follows: her indictment was flawed; the criminal statute was void for vagueness; the judge 24 was biased; her guilty plea was involuntary; and she was denied her rights to due process [25] 5 The relevant documents in CV-20-01412-CSB (C.D. Ill.) discussed in this section 26 are the § 2241 petition (Doc. 1), dismissal order (Doc. 5), notice of appeal (Doc. 19), Seventh Circuit order affirming (Doc. 30), and Seventh Circuit order denying panel 27 hearing (Doc. 31). The Seventh Circuit case is Fly v. Warden, 21-1495 (7th Cir.). 6 The petition was filed in the Southern District of Illinois but was transferred to the 28 Central District of Illinois because Petitioner was confined there at the time. See Doc. 3 in CV-20-01412. 1 and a speedy trial, received ineffective assistance of counsel, and was factually innocent of 2 the offense to which she had pleaded guilty. In dismissing these claims, the court observed 3 Petitioner “ha[d] not explained why she could not have brought these claims in a § 2255 4 motion,” noted “many of these claims were brought in her § 2255 motion and were denied,” 5 and held the claims “do not fall into the savings clause because they do not rely on a 6 decision of statutory interpretation, nor a decision that is new and retroactive.” 7 After Petitioner appealed, the Seventh Circuit Court of Appeals affirmed. 8 Subsequently, the Seventh Circuit denied Petitioner’s petition for panel rehearing. The 9 following month, Petitioner filed the § 2241 Petition currently pending before the Court. 10 III. Pending § 2241 Petition 11 In her current § 2241 Petition, which is rambling, repetitive, and difficult to 12 decipher, Petitioner raises 34 grounds for relief. As she did in her petition in the Central 13 District of Illinois, Petitioner raises claims regarding her conviction, sentence, and 14 conditions of confinement. 15 A. Claims Regarding Conviction and Sentence 16 Petitioner contends the indictment was defective and void for vagueness, she was 17 denied her right to speedy trial, and she is legally and actually innocent of violating 18 18 U.S.C. § 2421 (a) and of “illegal sentencing enhancements” that do not apply to her and 19 “breach” her plea agreement and promises made by her attorney. Petitioner asserts the 20 prosecutor was malicious and vindictive, lied to the grand jury and the court, committed a 21 “fraud upon the court” to induce her to plead guilty, failed to provide discovery or timely 22 discovery, denied her medical and mental health treatment, and “used known perjurious 23 testimony and evidence to seek illegal sentencing enhancements.” She contends she was 24 “tortured into a coerced unknowing and involuntary plea agreement,” received ineffective 25 assistance of counsel, and was constructively denied counsel. Petitioner alleges the United 26 States Probation Office “placed known false and perjurious statements” in her presentence 27 report. She contends the BOP deprived her of “email to legal advocates” because of the 28 “illegally unconstitutional unauthorized punishment of ‘Walsh Act’ notification”; raised 1 her custody level because of a “‘Sex Offender’ Public Safety Factor”; and is illegally 2 executing the trial court’s “unauthorized penalty of childbirth repayment.”7 She contends 3 the trial court judge was biased and corrupt, failed to rule on her motions, denied bond, 4 illegally convicted and sentenced her, and abused his discretion in pretrial, sentencing, and 5 habeas corpus proceedings. Petitioner asserts the § 2255 remedy was inadequate and 6 ineffective “due to judicial bias and prosecutorial misconduct.” 7 A motion to vacate sentence pursuant to § 2255 is generally the appropriate method 8 for challenging a federally imposed conviction or sentence, including a sentence “imposed 9 in violation of the Constitution or laws of the United States,” a sentence “the court was 10 without jurisdiction to impose,” or a sentence “in excess of the maximum authorized by 11 law.” 28 U.S.C. § 2255 (a); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). A 12 § 2241 petition for writ of habeas corpus is not a substitute for a motion under § 2255. 13 McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979); see also Pawlik v. Maiorana, 687 F. 14 App’x 421, 421–22 (5th Cir. 2017) (claiming BOP incorrectly applied a Sex Offender 15 Public Safety Factor to petitioner’s prison classification based on statements in the 16 presentence report was a § 2255 claim, not a § 2241 claim, because petitioner’s “challenge 17 to the correctness of factual findings in his [presentence report] is directed at an error that 18 allegedly occurred at or before sentencing” and such a challenge “falls under the purview 19 of § 2255”). 20 The Court will not consider a § 2241 petition by a prisoner authorized to apply for 21 § 2255 relief if “the applicant has failed to apply for relief, by motion, to the court which 22 sentenced [her], or . . . such court has denied [her] relief,” unless “the remedy by motion is 23 inadequate or ineffective to test the legality of [her] detention.” 28 U.S.C. § 2255 (e); see 24 also United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). This exception is narrow. 25 Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). 26 The § 2255 remedy is not inadequate or ineffective merely because the statute of [27] 7 This repayment appears to be the restitution the Court ordered paid to the North 28 Dakota Department of Human Services, Medical Services Division. (See Doc. 103 in CR16-00184). 1 limitations bars Petitioner from filing a motion under § 2255, the sentencing court has 2 denied relief on the merits, or § 2255 prevents Petitioner from filing a second or successive 3 petition. See Ivy, 328 F.3d at 1059 ; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999); 4 Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999); Tripati, 843 F.2d at 1162 . 5 The § 2255 remedy is inadequate or ineffective “when a petitioner (1) makes a claim 6 of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that 7 claim.” Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (quoting Stephens v. 8 Herrera, 464 F.3d 895, 898 (9th Cir. 2006)). In determining whether a petitioner has had 9 an unobstructed procedural shot to pursue her claim, the court considers “(1) whether the 10 legal basis for petitioner’s claim ‘did not arise until after [she] had exhausted [her] direct 11 appeal and first § 2255 motion;’ and (2) whether the law changed ‘in any way relevant’ to 12 petitioner’s claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (quoting Ivy, 13 328 F.3d at 1060–61). 14 The burden of coming forward with evidence affirmatively showing the inadequacy 15 or ineffectiveness of the § 2255 remedy rests with the petitioner. McGhee, 604 F.2d at 10 ; 16 Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). Petitioner has failed to meet her 17 burden. Thus, the Court will dismiss Petitioner’s claims regarding her conviction and 18 sentence. 19 B. Claims Regarding Conditions of Confinement 20 Petitioner raises claims she was beaten, raped, tortured, threatened, sexually 21 mutilated, sexually and physically assaulted, subjected to violations of the Prison Rape 22 Elimination Act, deprived of medical care and gender-affirming care, improperly housed, 23 deprived of email, deprived of property, denied programming, denied due process in 24 disciplinary hearings, denied due process and equal protection, retaliated against, 25 repeatedly transferred, and denied access to the courts and the redress of grievances. Some 26 of these claims purportedly arose in this District, but others arose at other federal prisons 27 around the country. 28 These claims relate to Petitioner’s conditions of confinement. If a prisoner is 1 challenging the conditions of her confinement rather than the validity or duration of the 2 confinement, her remedy arises, if at all, under the civil rights law, not habeas corpus. 3 See Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (“Challenges to the 4 validity of any confinement or to particulars affecting its duration are the province of 5 habeas corpus; requests for relief turning on the circumstances of confinement may be 6 presented in a [civil rights] action.” (internal citation omitted)); see also Pinson v. Carvajal, [7] 69 F.4th 1059, 1069 (9th Cir. 2023) (“We are . . . unpersuaded that the federal habeas 8 statutes or Hernandez [v. Campbell, 204 F.3d 861 (9th Cir. 2000),] create an exception to 9 the rule announced in Crawford [v. Bell, 599 F.2d 890 (9th Cir. 1979),] that ‘the writ of 10 habeas corpus is limited to attacks upon the legality or duration of confinement.’” (quoting 11 Crawford, 599 F.2d at 891 )). 12 If a prisoner seeks civil rights relief by filing a habeas petition, she has mislabeled 13 her case and is entitled to have her action treated as a claim for relief under civil rights law. 14 Wilwording v. Swenson, 404 U.S. 249, 251 (1971), superseded by statute, Civil Rights of 15 Institutionalized Persons Act, § 7, 94 Stat. 352–353,; Hansen v. May, 502 F.2d 728 , 729– 16 30 (9th Cir. 1974). However, Petitioner clearly indicated she intended to file a habeas 17 petition, not a civil rights action, and she currently has a civil rights action pending in this 18 Court, Fly v. Diaz, CV-21-00506-TUC-SHR (D. Ariz.), that raises issues regarding her 19 conditions of confinement. Thus, the Court will dismiss Petitioner’s claims regarding her 20 conditions of confinement. 21 IT IS ORDERED: 22 (1) Petitioner’s Petition Under 28 U.S.C. § 2241 (Doc. 1) and this case are 23 DISMISSED. 24 (2) The Clerk of Court must enter judgment accordingly and close this case. 25 (3) Although Petitioner has brought her claims in a § 2241 petition, a certificate 26 of appealability is required where a § 2241 petition attacks the petitioner’s conviction or 27 sentence. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). Pursuant to Rule 28 11(a) of the Rules Governing Section 2255 Cases, in the event Petitioner files an appeal, 1 | the Court declines to issue a certificate of appealability because reasonable jurists would 2| not find the Court’s procedural ruling debatable. See Slack vy. McDaniel, 529 U.S. 473, 3 ) 484 (2000). 4 Dated this 25th day of January, 2024. 5 ’ (| Honorable Scott H. Rash 8 United States District Judge [28] -8-