JOHN F. BIG LEGGINS, JR., No. 09808-046, Petitioner,
J.S. WALTON, Respondent.
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
Petitioner John F. Big Leggins, Jr., is currently incarcerated in the United States Penitentiary at Marion, Illinois. His July 2013 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) did not make clear which of two convictions Big Leggins was challenging, or what the "intervening case law" was upon which the petition rested. Petitioner was given an opportunity to amend the petition (Doc. 3). His amended petition (Doc. 4) is now before the Court for review under Rules 1(b) and 4 of the Rules Governing Section 2254 Cases in United States District Courts.
Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases.
Petitioner Big Leggins is attacking his conviction and sentence in United States v. Big Leggins, No. 07-cr-00072-SEH (D. Mont. Dec. 18, 2007). In 2007, petitioner plead guilty to one count of arson, in violation of 18 U.S.C. §§ 1153(a) and 81(1). Based in part on his lengthy tribal criminal history, Big Leggins was sentenced to 24 months' imprisonment, to be followed by a three-year period of supervised release, and restitution in the amount of $22, 273.11.
The Court of Appeals for the Ninth Circuit affirmed the conviction on direct appeal. See United States v. Big Leggins, No. 08-30003 (9th Cir. Mar. 5, 2009) (accepting Big Leggins' concession in his plea that the vacant house that was burned was a "building" for purposes of the statute, and also a "structure" under U.S.S.G. § 2K1.4; and that the sentence was reasonable and not an abuse of discretion). The Court has found no indication that Big Leggins has ever filed a motion under 28 U.S.C. § 2255 attacking his arson conviction ( see Doc. 1, p. 4).
II. The Petition
As a preliminary matter, the Court notes that Big Leggins incorporates his original petition into his amended petition by reference, in violation of Local Rule 15.1. In the interest of judicial economy, rather than require a second amended petition, the Court will consider both the original petition (Doc. 1) and the amended petition (Doc. 4).
Petitioner claims that he is actually innocent and, if not for the ineffective assistance of counsel, he would not have plead guilty. According to petitioner, the ineffective assistance of his counsel impacted his plea, appeal and ability to collaterally attack his conviction and sentence.
Big Leggins'principal focus appears to be the definition of a "building"-he characterizes the relevant structure as a "half-burned down" "vacant house." Petitioner argues that, had counsel properly investigated, counsel would have realized he was actually innocent of arson because the building at issue was already burned down before Big Leggins purportedly set fire to the building. Big Leggins similarly contends that the F.B.I. case agent failed to fairly and fully investigate his case.
Big Leggins contends that he is only raising these issues now because of intervening case law: Cole v. Oravec, 465 Fed.Appx. 687 (9th Cir. Jan. 10, 2012).
Big Leggins prays that his conviction and sentence be vacated and that the case be remanded to the district court for further proceedings. He also requests that his quarterly restitution obligation be stayed and all payments already made be refunded, in order to prevent further injustice. Furthermore, he seeks "declaratory and equitable relief" against the Fort Peck Tribes, Bureau of Indian Affairs, F.B.I., and the District Court for Montana for the shoddy investigation, racial discrimination, and use of a lowered evidentiary threshold for indictment.
Ordinarily, a person may challenge his federal conviction only by means of a motion brought before the sentencing court pursuant to 28 U.S.C. § 2255, and this remedy normally supersedes the writ of habeas corpus. A Section 2241 petition by a federal prisoner is generally limited to challenges to the execution of the sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Atehortua v. Kindt, 951 F.2d 126, 129 (7th Cir. 1991). Federal prisoners may utilize Section 2241, however, to ...