United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau, United States Magistrate
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
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
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.
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.
Petition, Doc. 1.
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.
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. §
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