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Kapordelis v. Walton

United States District Court, S.D. Illinois

October 14, 2014

GREGORY C. KAPORDELIS, # XXXXX-XXX, Petitioner,
v.
JEFFREY S. WALTON, Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, District Judge.

Petitioner Gregory Kapordelis is currently incarcerated in the Federal Correctional Institution at Marion, Illinois, which is located in the Southern District of Illinois. He is serving a thirty-five year sentence for child pornography-related crimes. See United States v. Kapordelis, No. 04-cr-249 (N.D.Ga. 2004) (Doc. 499) ("criminal case"). Kapordelis filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 to challenge his conviction and sentence (Doc. 1). The 226-page petition hinges on a single argument.

Kapordelis claims that the United States District Court for the Northern District of Georgia lost jurisdiction to entertain his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, when it failed to rule on a motion to recuse the judges in that proceeding (Doc. 1, p. 4). This oversight, in turn, rendered the § 2255 proceeding defective and the order denying his motion void. Kapordelis seeks a do-over, and he maintains that the "savings clause" under § 2255(e) entitles him to one. He asks this Court to consider, anew, seven of the twenty-three grounds for relief that were identified in his § 2255 proceeding.

Although this appears to be the first time that Kapordelis has filed a § 2241 petition in this District, his argument is not a novel one. It has become the subject of a filing ban in the United States District Court for the Northern District of Georgia and the United States Court of Appeals for the Eleventh Circuit. See, e.g., Kapordelis v. United States, No. 12-13456 (11th Cir. June 29, 2012); see also In re: Gregory C. Kapordelis, No. 14-12275 (11th Cir. May 22, 2014). In addition, litigation over this issue has spurred Kapordelis' claims of judicial bias against numerous judges who have disagreed with his position, including a magistrate judge, a district judge, and two panels of federal appellate court judges. See, e.g., United States v. Kapordelis, No. 04-cr-249 (N.D.Ga. 2004) (Docs. 538, 546); Kapordelis v. Carnes, et al., No. 11-cv-1769 (N.D.Ga. 2011); Kapordelis v. Carnes, et al., No. 12-10956 (11th Cir. 2012). As discussed in more detail below, this Court finds Kapordelis' argument unavailing under § 2241, and the petition shall be DISMISSED.

Background

Kapordelis is a former anesthesiologist and a lieutenant commander in the United States Navy (Doc. 1, p. 7). On April 12, 2004, he was arrested on allegations of molestation of three juveniles in Russia. He was indicted on May 4, 2004, on one count of traveling in foreign commerce with the intent to engage in illicit sexual conduct abroad, in violation of 18 U.S.C. § 2423(b), and one count of engaging in illicit sexual conduct abroad, in violation of 18 U.S.C. § 2423(c). See United States v. Kapordelis, No. 04-cr-249 (N.D.Ga. 2004) ("criminal case") (Doc. 14, criminal case). These charges were eventually dropped.

At the time of his arrest, however, officials seized Kapordelis' home computers and discovered contraband that led to his indictment, under a Fourth Superseding Indictment, and trial on seven counts related to child pornography (Doc. 318, criminal case). A jury returned a guilty verdict on six of these counts on May 24, 2007 (Doc. 457, criminal case). This included three counts of violating 18 U.S.C. § 2251(a) for sexual exploitation of a minor ("Counts 1, 2, and 3"), two counts of 18 U.S.C. § 2252A(a)(2)(A) for receipt of child pornography ("Counts 5 and 6"), and one count of 18 U.S.C. § 2252(a)(5)(B) for possession of child pornography ("Count 7"). Id. (Doc. 457, criminal case). On September 19, 2007, Kapordelis was sentenced to a term of thirty-five years of imprisonment[1] and six years of supervised release; he received a $20, 000.00 fine (Doc. 499, pp. 4-5, criminal case).

Kapordelis appealed his conviction and sentence in the United States Court of Appeals for the Eleventh Circuit. United States v. Kapordelis, No. 07-14499 (11th Cir. 2007). On appeal, he argued that the district court erred by: (1) denying his motion to dismiss Counts 1 and 3 of the Fourth Superseding Indictment; (2) denying his request for a hearing under Franks v. Delware, 438 U.S. 154 (1978), and his motion to suppress evidence under certain search warrants; (3) admitting testimony concerning his solicitation of sex from boys under the age of eighteen while in the Czech Republic under Federal Rule of Evidence 404(b); (4) applying the 2003 United States Sentencing Guidelines ("U.S.S.G.") instead of the 2002 Guidelines in imposing his sentence; (5) finding that one his victims was vulnerable under U.S.S.G. § 3A1.1; (6) double counting the number of images of child pornography that he possessed by imposing both a two-level enhancement for the number of images he possessed under U.S.S.G. § 2G2.4(b)(2) and a 5-level enhancement for having more than 600 images pursuant to U.S.S.G. § 2G2.4(b)(5)(D); (7) impermissibly granting an upward departure;

(8) accepting a written victim impact statement during sentencing; and (9) imposing an unreasonable sentence. In a comprehensive opinion, the Eleventh Circuit addressed each of these claims in detail and ultimately affirmed the district court's decision regarding Kapordelis' conviction and sentence. See United States v. Kapordelis, 569 F.3d 1291, 1298 (11th Cir. 2009), cert. denied, January 25, 2010.

Kapordelis filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 on January 26, 2011 (Doc. 536, criminal case). On the same date, he filed a motion seeking recusal of District Judge Charles A. Pannell and Magistrate Judge Gerrilyn G. Brill from the § 2255 proceeding under 28 U.S.C. §§ 144 and 455 (Docs. 538, 546, [2] criminal case). Before the § 2255 motion was decided, Magistrate Judge Brill denied the motion for recusal in a written order that was entered on September 20, 2011, after concluding that Kapordelis' claim of judicial bias arising from allegations of homophobia was unsupported (Doc. 557, criminal case). Kapordelis filed objections to this order, in the form of an "appeal" to District Judge Pannell on October 3, 2011 (Doc. 560, criminal case), and again on October 13, 2011 (Doc. 562, criminal case). In the instant § 2241 petition, Kapordelis claims that these objections were never addressed.

On December 12, 2011, Magistrate Judge Brill issued a report and recommendation to deny the § 2255 motion (Doc. 567, criminal case). District Judge Pannell adopted the report and recommendation three months later on March 6, 2012 (Doc. 574, criminal case). The district court declined to issue a certificate of appealability (Doc. 577, criminal case).

Kapordelis filed a notice of appeal on June 25, 2012 (Doc. 579, criminal case). See Kapordelis v. United States, No. 12-13456 (11th Cir. 2012). Among other things, he challenged the order denying relief under § 2255 and the general denial of his motion for recusal under §§ 144 and 455 (Doc. 579, criminal case). The district court denied Kapordelis' request for leave to proceed in forma pauperis ("IFP") on appeal as moot, based on its earlier decision to deny a COA (Doc. 585, criminal case). The Eleventh Circuit also declined to issue a COA on January 23, 2013 (Doc. 596, criminal case) and later denied Kapordelis' motions for reconsideration of this decision (597, criminal case). His request for certiorari review by the United States Supreme Court was denied on October 6, 2014 (Doc. 623, criminal case). Kapordelis filed countless motions to reconsider each denial of his request for review of the recusal matter (Docs. 599, 606, 610, 614, 616, criminal case).

The Habeas Petition

In the instant petition, Kapordelis seeks to upset his federal conviction and sentence by challenging the district court's handling of his motion for recusal in the § 2255 proceeding (Doc. 1). He claims that District Judge Pannell's failure to address the recusal motion deprived the district court of jurisdiction in the § 2255 ...


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