United States District Court, D. Minnesota
Allison Hargrave, pro se.
Voss and Ann M. Bildtsen, Assistant United States Attorneys,
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
R. TUNHEIM CHIEF JUDGE
Allison Hargrave pleaded guilty to attempting to entice a
minor to engage in sexual activity in violation of 18 U.S.C.
§ 2422(b). See United States v. Hargrave, 470
Fed.Appx. 355, 355 (5th Cir. 2012). She was
sentenced to a 360-month term of imprisonment by the United
States District Court for the Western District of Louisiana.
Id. at 356. On September 7, 2018, she filed a 28
U.S.C. § 2241 habeas corpus petition in this court,
seeking to collaterally attack her sentence. (Pet., Sept. 7,
2018, Docket No. 1.) On November 28, 2018, Magistrate Judge
Hildy Bowbeer filed a Report and Recommendation
(“R&R”) to dismiss Hargrave's petition,
without prejudice, for lack of jurisdiction. (R. & R. at
7, Nov. 28, 2018, Docket No. 6.) Hargrave objected to the
R&R. (Pet'r's Resp., Dec. 20, 2018, Docket No.
7.) Because the Court lacks jurisdiction or otherwise finds
the petition deficient, the Court will overrule
Hargrave's objection, adopt the R&R and deny
§ 2241 petition asserted three claims for relief. First,
she argued that the Supreme Court's Sessions v.
Dimaya opinion-which held that the term “crime of
violence” as defined in an immigration statute was
unconstitutionally vague-applies to her case. (See
Pet'r's Resp. to Ct. Order at 3, Oct. 18, 2018,
Docket No 5.) Second, she argued that sentencing court's
decision regarding her restitution was invalid because the
government did not comply with the relevant statute.
(Id. at 4.) Finally, she argued that the prosecution
team in her case committed a Brady violation when it
failed to provide her and her attorney with a witness list.
(Id. at 4-5.)
Magistrate Judge found that the Court lacks jurisdiction to
hear Hargrave's Dimaya argument because the
exclusive remedy for such an argument is through a 28 U.S.C.
§ 2255 motion, which may only be filed with the
sentencing court. 28 U.S.C. § 2255(a). Hargrave
acknowledges that a § 2255 motion is the appropriate
remedy, but states that she cannot file that motion with her
sentencing court because it would be her second such motion
and would require pre-authorization. 28 U.S.C. §
2255(h). Hargrave, therefore, requests authorization from the
Court. However, as § 2255(h) makes clear, authorization
to file a second § 2255 motion can only be given from
the “appropriate court of appeals.” Id.
The appropriate court of appeals in this case would be the
Fifth Circuit. Accordingly, the Court cannot grant
Hargrave's restitution argument, the Magistrate Judge
concluded that restitution can only be challenged through a
§ 2241 petition in exceptional circumstances, and that
Hargrave had not shown any such circumstances. Hargrave, in
response, simply reiterates her position that her restitution
was calculated in violation of 18 U.S.C. § 2259. Because
Hargrave has not provided any reason why a § 2241
petition is appropriate to challenge her restitution the
Court will deny her request.
the Magistrate Judge found Hargrave's Brady
argument unpersuasive in part because Hargrave could have
asserted the argument in her initial § 2255 motion.
Hargrave does not respond or object to this point. Because
Hargrave's Brady argument could have been raised
in her earlier § 2255 motion, the Court lacks
jurisdiction to hear it in this § 2241
petition. See 28 U.S.C. § 2255(e).
on the foregoing, and all the files, records, and proceedings
herein, IT IS HEREBY ORDERED that:
1. The Magistrate Judge's Report and Recommendation
[Docket No. 6] is ADOPTED.
2. Petitioner Hargrave's 28 U.S.C. § 2241 Petition
for Writ of Habeas Corpus [Docket No. 1] is DENIED
JUDGMENT BE ...