Derrick Hills v. Warden Loretto FCI , 646 F. App'x 134 ( 2016 )

AMENDED DLD-175 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-3420
____________
DERRICK LEON HILLS,
Appellant
v.
WARDEN LORETTO FCI
__________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 3-15-cv-00241)
District Judge: Kim R. Gibson
__________________________________
Submitted for Possible Dismissal under 28 U.S.C. § 1915(e)(2)
or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 10, 2016
Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges
(Opinion filed: April 4, 2016)
____________
OPINION*
___________
PER CURIAM
Appellant Derrick Hills appeals from an order of the District Court dismissing his
petition for writ of habeas corpus, 28 U.S.C. § 2241. For the reasons that follow, we will
summarily affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
In May of 2009, a United States District Judge sitting in the Eastern District of
Michigan issued an order to show cause why Hills should not be held in criminal
contempt pursuant to 18 U.S.C. § 401(3).1 The matter was tried before a jury in
September of 2013, and Hills was convicted of five counts of criminal contempt. Hills
was released in advance of sentencing, but, when he failed to appear for his sentencing
hearing, the District Judge revoked his bond and issued a warrant for his arrest. Hills
eventually was arrested and sentenced on March 10, 2014 to a term of imprisonment of
46 months, a term he is now serving in the Federal Correctional Institution in Loretto,
Pennsylvania. Hills timely appealed to the United States Court of Appeals for the Sixth
Circuit.
While his appeal was pending, Hills filed a petition for writ of habeas corpus, 28
U.S.C. § 2241, in the United States District Court for the Western District of
Pennsylvania, raising numerous challenges to the validity of his conviction and sentence,
including that the federal court in the Eastern District of Michigan lacked subject-matter
jurisdiction to convict him in the absence of an indictment or complaint, and that his 46-
month sentence was improper. In an order entered on August 21, 2014, the District Court
denied the § 2241 petition, and we affirmed, see Hills v. Warden Loretto FCI, 597 F.
App’x 669 (3d Cir. 2015) (motion filed under § 2255 in sentencing court is presumptive
means for federal prisoner to challenge validity of his conviction or sentence after he has
completed his direct appeal).
1
Rule 42(a) provides that “[a]ny person who commits criminal contempt may be
punished for that contempt after prosecution on notice.” Fed. R. Crim. P. 42(a). Notice
must be given “in open court, in an order to show cause, or in an arrest order,” and must:
“(A) state the time and place of the trial; (B) allow the defendant a reasonable time to
prepare a defense; and (C) state the essential facts constituting the charged criminal
contempt and describe it as such.” Fed. R. Crim. P. 42(a)(1)(A)-(C).
2
At issue in this appeal, on September 16, 2015, Hills filed another § 2241 petition
in the Western District of Pennsylvania, again challenging the validity of his conviction
and sentence. In an order entered on September 29, 2015, the District Court summarily
dismissed the petition without prejudice to Hills’ pending direct appeal.
Hills timely appeals. We have jurisdiction under 28 U.S.C. § 1291. See Burkey v.
Marberry, 556 F.3d 142, 146 (3d Cir. 2009) (certificate of appealability not required to
appeal from denial of § 2241 petition). Meanwhile, the Sixth Circuit Court of Appeals
affirmed Hills’ criminal judgment on November 5, 2015, see United States v. Derrick
Hills, C.A. No. 14-1361 (6th Cir. Nov. 5, 2015) (Order). The court’s mandate issued on
January 22, 2016.
Our Clerk granted Hills leave to appeal in forma pauperis and advised him that the
appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary
action under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in
writing, and he has done so. He argues that his § 2241 petition should proceed because
the pendency of his direct appeal is no longer an impediment to it; jurisdiction in the
Eastern District of Michigan to prosecute him for contempt was lacking because of the
absence of an indictment or criminal complaint; Richard Roble was not authorized to act
as a prosecutor because he is not an Assistant U.S. Attorney;2 and because any remedy
available to him under 28 U.S.C. § 2255 is inadequate to test the legality of his detention.
Hills also has filed a motion for bail pending appeal, which the Government has opposed.
2
Roble was working as a Special Assistant United States Attorney during his
involvement in the criminal contempt proceeding. Rule 42(a) requires that “the contempt
be prosecuted by an attorney for the government, unless the interest of justice requires the
appointment of another attorney. If the government declines the request, the court must
appoint another attorney to prosecute the contempt.” Fed. R. Crim. P. 42(a)(2).
3
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. A petition
filed pursuant to 28 U.S.C. §2241 is used to challenge some aspect of the execution of a
federal inmate’s sentence. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001)
(“Section 2241 is the … statute that confers habeas jurisdiction to hear the petition of a
federal prisoner who is challenging not the validity but the execution of his sentence.”).
Hills is not challenging the execution of his sentence; rather, he once again has resorted
to § 2241 to attack the validity of his conviction and sentence. Because his direct appeal
has now come to an end, Hills must bring his challenge to his contempt conviction and
sentence through a motion pursuant to 28 U.S.C. § 2255 filed in the sentencing court.
See In re: Olopade, 325 F.3d 166, 168 (3d Cir. 2003) (“Once the defendant has
completed a direct appeal, [he] may file one collateral challenge as a matter of course
provided it is timely.”). A motion filed under § 2255 in the sentencing court is the
presumptive means for a federal prisoner to challenge the validity of his conviction or
sentence after he has completed his direct appeal. See Okereke v. United States, 307
F.3d 117, 120 (3d Cir. 2002). Hills’ argument that the remedy available to him under §
2255 is inadequate is premature.
Because the United States District Court for the Western District of Pennsylvania
lacked jurisdiction to grant Hills relief under 28 U.S.C. §2241, we will deny his request
for bail under Rule 23 of the Federal Rules of Appellate Procedure. Landano v. Rafferty,
970 F.2d 1230, 1239 (3d Cir. 1992) (bail pending disposition of habeas corpus review is
available “only when the petitioner has raised substantial constitutional claims upon
which he has a high probability of success [. . .] or [has shown that] exceptional
4
circumstances exist which make a grant of bail necessary to make the habeas remedy
effective.”). We do so without prejudice to his right to seek bail in the context of a
properly filed § 2255 motion in the Eastern District of Michigan.
For the foregoing reasons, we will summarily affirm the order of the District Court
denying the § 2241 petition. Hills’ motion for bail pending appeal is denied. Hill’s
motion for leave to substitute his reply is denied.
5