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Sarras v. Warden of FCC Tucson

United States District Court, D. Arizona

February 1, 2018

Donatos Sarras, Petitioner,
v.
Warden of FCC Tucson, Respondent.

          REPORT AND RECOMMENDATION

          Honorable Jacqueline M. Rateau, United States Magistrate Judge.

         Petitioner Donatos Sarras, who is currently incarcerated at USP-Tucson, Arizona, has filed Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the sentence imposed by the United States District Court for the Middle District of Florida (Doc. 1). Respondent filed a Motion to Dismiss for Lack of Jurisdiction (Doc. 15). Sarras filed a response (Doc. 17). Respondent then filed a reply (Doc. 18). In accordance with 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to the Magistrate Judge for report and recommendation.

         I. Background

         Sarras challenges his November 2007 conviction in the United States District Court of the Middle District of Florida for three counts of knowingly using, inducing, or coercing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, in violation of 18 U.S.C. § 2251(a) & (e), and one count of knowingly possessing materials containing images of child pornography. Sarras was sentenced to three consecutive 360-month terms of imprisonment for counts one, two, and three, and a consecutive 120-month term of imprisonment for count four.

         Sarras's convictions and sentences were affirmed by the Eleventh Circuit Court of Appeals in United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009). Sarras filed a § 2255 motion in the sentencing court, which that court denied in October 2013. See Doc. 1-4. Sarras subsequently filed an application to file a second or successive § 2255 motion. See Doc. 1-6. The Eleventh Circuit's September 2016 order denying the application reflects that Sarras raised three claims based on “newly discovered evidence.” Id. Specifically, he alleged that (1) “he was not home during the times the government showed at trial that there was ‘computer activity' on his home computer;” (2) the Seminole County Sheriff's Office provided the defense with incomplete EXIF data from the images stored on the camera that was used to prove the commerce element in all charges; and (3) bias and prejudice against him resulted from the Seminole County Sheriff's Office interest in the potential forfeiture of his home and that the Sheriff's Office was “imaging” his computer for 18 days and were plotting to change their testimony against him. Id., pp. 3-6.

         In his Petition now before the Court, Sarras originally raised four grounds for relief. The District Court dismissed Ground Four, leaving the following three grounds for relief:

(1) Admission and testimony in Sarras vs. Mills-Sarras Case No. 12-CA-347-15K . . . show[s] that Petitioner's trip to the bank on 5/7/07 was after 1 PM and thus based on trial testimony in the present case, someone else did operate the computer in evidence for the duration of Petitioner's trip. This is showing there is [a] violation of Petitioner's rights under Amendments V, VI and VIII to the U.S. Constitution;
(2) FOIA records from Seminole County Sheriff's Office show that partial forensic evidence was provided to the defense and was used at trial by the government to show an element on all the charges while the already presented habeas expert testimony disproves the government's case. This is showing [a] violation of Petitioner's rights under Amendments V, VI, and VIII to the U.S. Constitution;
(3) FOIA records from Seminole County Sheriff's Office show bias, prejudice, interest and testimony inconsistencies. This is showing [a] violation of Petitioner's rights under Amendments IV, V, VI, and VIII to the U.S. Constitution.

Petition, Doc. 1.

         Respondent has filed a Motion to Dismiss for Lack of Jurisdiction (Doc. 15), arguing that Sarras's Petition challenges the validity of his conviction and sentence and, therefore, must be brought as a motion pursuant to 28 U.S.C. § 2255 in the sentencing court, and not as a § 2241 habeas petition. If Sarras's Petition is a “disguised § 2255 petition, ” as Respondent contends, then this Court lacks jurisdiction to hear it. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (district court cannot ignore “decisive jurisdictional question”). As discussed below, the Magistrate Judge finds that the Petition is properly viewed as a § 2255 motion and recommends that the District Court dismiss the Petition for lack of jurisdiction.

         II. Discussion

         A federal prisoner may bring a motion attacking the legality of his conviction or sentence pursuant to 28 U.S.C. § 2255. Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008). By contrast, a federal prisoner challenging the manner, the location, or the conditions of a sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Id. at 956 (discussing distinction between sections 2255 and 2241); see also Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (noting that section 2241 is available only to challenge the manner of execution of a prisoner's federal sentence and not the legality). However, section 2255 contains a “savings clause” or escape hatch, ” which allows a federal prisoner to seek section 2241 relief when a section 2255 motion is “inadequate or ineffective to test the legality of his detention.” Harrison v. Ollison, 519 F.3d 952, 956 (quoting 28 U.S.C. § 2255(e)).

         The claims alleged in the Petition directly challenge the validity of Sarras's conviction and sentence. Specifically, Sarras claims that the evidence establishes that someone else operated the computer on which incriminating photographs were found, that the camera allegedly used to take the photographs was not involved in the charged offenses, and that the law enforcement agents who testified against him were motivated by their office's financial interest in the forfeiture of Sarras's home. Petition, pp. 3-6. Because the claims challenge the validity of Sarras's conviction, section 2241 jurisdiction does not exist unless Sarras can satisfy his burden of showing that section 2255's “escape hatch” is available. The Ninth Circuit has held that a motion meets that “escape hatch” criteria of section ...


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