United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BRISBOIS UNITED STATES MAGISTRATE JUDGE
1998 to 2002, Petitioner Janet Mavis Marcusse organized and
operated a Ponzi scheme that bilked investors out of over $12
million. See, United States v. Flynn, 365
Fed. App'x 434 (6th Cir. 2008). After a 5-week jury trial
concluding in 2005 in the United States District Court for
the Western District of Michigan, Marcusse was convicted on
60 counts of fraud and money laundering and was sentenced to
a total of 25 years' imprisonment. Id. at 439.
her conviction, Marcusse has raised many challenges to the
validity of her conviction. Not long after the trial ended,
Marcusse presented a motion for a judgment of acquittal
pursuant to Rule 29(c) of the Federal Rules of Criminal
Procedure on the basis of insufficient evidence,
see, United States v. Marcusse, No.
1:04-CR-0165-GJQ, Docket No. 430 (W.D. Mich. filed June 21,
2005), and she peppered the trial court with motions for
relief throughout the duration of her direct appeal. Each was
denied. After the conclusion of her direct appeal which was
unsuccessful Marcusse filed a motion pursuant to 28 U.S.C.
§ 2255 containing “thirty separate ‘grounds,
' many of which contain[ed] multiple arguments.”
Marcusse v. United States, F.Supp.2d 654, 660 (W.D.
Mich. 2011). In a pair of orders totaling 117 pages, the
trial court carefully and thoroughly examined each of the
arguments presented by Marcusse, finding each wanting.
See, Id.; see, also,
Marcusse v. United States, No. 1:09-CV-913, 2012 WL
5306258 (W.D. Mich. Oct. 26, 2012). Marcusse has on at least
five occasions sought leave to file second or successive
motions under § 2255, with each request denied by the
Sixth Circuit Court of Appeals. And twice before, Marcusse
has filed petitions for a writ of habeas corpus in the United
States District Court for the Northern District of Florida
(the district in which she previously was incarcerated),
again with each dismissed. See, Marcusse v. Warden
FCI Tallahassee, No. 4:14CV301-MW/CAS, 2016 WL 7634460
(N.D. Fla. Nov. 23, 2016).
matter is now before the Court on Marcusse's third
Petition for a Writ of Habeas Corpus. (See, [Docket
No. 1]). The Petition a sprawling 245-page document, with an
additional 528 pages of Exhibits and a 35-page Memorandum in
Support largely repeats claims that already have been raised
by Marcusse, although it also offers a handful of new lines
of attack. Each argument, though, fails for the same reason:
a petition for a writ of habeas corpus simply is not the
correct vehicle for Marcusse to challenge her conviction.
federal inmate generally must challenge a conviction or
sentence through a § 2255 motion.” Lopez-Lopez
v. Sanders, 590 F.3d 905, 907 (8th Cir. 2010) (citation
omitted). Therefore, “[i]t is well settled a collateral
challenge to a federal conviction or sentence must generally
be raised in a motion to vacate filed in the sentencing court
under § 2255 . . . and not in a habeas petition filed in
the court of incarceration . . . under § 2241.”
Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir.
2003). Federal district courts lack jurisdiction to hear a
federal prisoner's collateral challenge to her original
conviction or sentence brought in a habeas petition unless
the prisoner demonstrates that the remedy provided by §
2255 is inadequate or ineffective to test the legality of her
detention. See, 28 U.S.C. § 2255(e) (“An
application for a writ of habeas corpus [on] behalf of a
[federal] prisoner . . . shall not be entertained . . .
unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his
detention.”); DeSimone v. Lacy, 805 F.2d 321,
323 (8th Cir. 1986) (per curiam). The “inadequate or
ineffective remedy” exception is often referred to as
the “savings clause.” See, Abdullah
v. Hedrick, 392 F.3d 957, 959 (8th Cir. 2004).
the Supreme Court nor the Eighth Circuit Court of Appeals has
set forth the exact contours of the savings clause. It is
clear, however, that the savings clause applies very
narrowly. For example, “[i]t is well established that
in order to establish a remedy is inadequate or ineffective
under § 2255, there must be more than a procedural
barrier to bringing a § 2255 petition.”
Abdullah, 392 F.3d at 959. Thus, it is not enough to
show that a motion under § 2255 would now be untimely,
or that the motion is now barred as “second or
successive.” See, United States v.
Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (collecting
cases). At a minimum, the petitioner seeking to invoke the
savings clause must show that she “had no earlier
procedural opportunity to present [her] claims.”
Abdullah, 392 F.3d at 963; see,
also, United States v. Barrett, 178 F.3d
34, 52 (1st Cir. 1999) (“[W]here a prisoner had an
opportunity to present his claim properly in his first §
2255 petition, but failed to do so, any
‘ineffectiveness' of his current § 2255
petition is due to him and not to § 2255.”).
problem comes down to this: No argument she raises in her
habeas petition couldn't have been raised before. Indeed,
most of the arguments were raised before, many
arguments repeatedly. Marcusse does not colorably rely upon
any new rule of law made retroactive to cases on collateral
review since the time of her § 2255 proceedings. Nor
does Marcusse present evidence of which, with due diligence,
she could not have been aware earlier. And far from being
“inadequate or ineffective, ” Marcusse was
offered ample opportunity to challenge her conviction and
sentence § 2255 an opportunity of which she fully
availed herself. That Marcusse is dissatisfied with the
result of the § 2255 proceedings does not render those
proceedings inadequate or ineffective.
it is hereby recommended that this matter be dismissed
without prejudice for lack of jurisdiction.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED THAT this matter
be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. LR 72.2(b)(2). ...