Wise v. Kastner , 340 F. App'x 957 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2009
No. 08-40223
Summary Calendar Charles R. Fulbruge III
Clerk
JOHNIE WISE
Plaintiff-Appellant
v.
PAUL KASTNER, Chief Executive Officer/Trustee
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:07-cv-56
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Johnie Wise, federal prisoner # 82218-079, appeals the district court’s
dismissal of his action that he characterized as an independent action in equity.
Wise argues that he was convicted of a nonexistent offense because there was no
weapon of mass destruction. He argues that the district court erred in
increasing his offense level at sentencing with a victim-related adjustment and
in doing so on the basis of facts not found by the jury. He maintains that the
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-40223
prisoner bond was a revenue-generating device for the United States
government that violated his due process rights.
One of the essential elements of an independent action in equity is a
showing of the absence of any adequate remedy at law. Bankers Mortgage Co.
v. United States, 423 F.2d 73, 79 (5th Cir. 1970). An “independent action cannot
be made a vehicle for the relitigation of issues.” Id. The Supreme Court has
further noted that an independent action in equity should be available only to
prevent a grave miscarriage of justice. United States v. Beggerly, 524 U.S. 38,
47 (1998). Wise has shown only that he has not been satisfied with the results
of the at law remedies available to him. Wise’s action does not meet the
demanding standards for sustaining an independent action in equity.
Since Wise’s action was not filed in the federal district court in which he
was convicted and sentenced, the district court did not have jurisdiction to
alternatively treat his action as a motion under 28 U.S.C. § 2255. See Pack v.
Yousuff, 218 F.3d 448, 451 (5th Cir. 2000). Because Wise did not assert that he
was convicted of an offense that is nonexistent as to all persons, his action also
did not meet the essential criteria of a claim under 28 U.S.C. § 2241 made in
conjunction with the savings clause of § 2255(e). See Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001).
AFFIRMED.
2