United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Allison D. Burroughs United States District Judge.
the Court is Jeffrey Schmutzler's third petition in this
district (and the second before this Court) for a writ of
habeas corpus under 28 U.S.C. § 2241 (ECF No. 1) and
Petitioner's Motion for Appointment of Counsel (ECF No.
2). The petition has not been served pending the Court's
review of the petition. See 28 U.S.C. § 2243
(if “it appears from the application [for a writ of
habeas corpus] that the applicant . . . is not entitled [to
the writ], ” the district court is not required to
order the respondent “to show cause why the writ [of
habeas corpus] should not be granted”). For the reasons
stated below, the Court DENIES the petition. In
light of the Court's denial of the petition, the motion
for appointment counsel (ECF No. 2) is DENIED as
29, 2013, Jeffrey Schmutzler pleaded guilty in the United
States District Court for the Middle District of Pennsylvania
to one count of knowingly receiving child pornography
pursuant to 18 U.S.C. 2252A(a)(2). United States v.
Schmutzler, 602 Fed. App'x. 871, 872 (3rd Cir.
2015); United States v. Schmutzler, No.
1:13-CR-00065, 2015 WL 1912608, at *1 (M.D. Pa. Apr. 27,
2015). Schmutzler was sentenced to 108 months.
Id. He is currently serving his sentence at FMC
Devens in Ayer, Massachusetts. On February 23, 2015,
Schmutzler's conviction was affirmed. United States
v. Schmutzler, 602 Fed.Appx. 871 (3rd Cir. 2015).
November 21, 2016, Schmutzler filed a motion for relief from
the order on his § 2255 proceeding before the sentencing
court in the Middle District of Pennsylvania. Schmutzler
claimed that his case should have been dismissed because of
principles of federalism and related jurisdictional claims
relating to the statute under which he was convicted. On
March 9, 2017, the motion was denied as an unapproved second
or successive 28 U.S.C. § 2255 petition. United
States v. Schmutzler, No. 1:CR-13-0065, 2017 WL
930455, at *3 (M.D. Pa. Mar. 9, 2017). That court held:
Defendant no longer simply argues that federal authorities
should have deferred to state ones, but asserts that the
federal statute does not reach his conduct, and phrasing the
argument in terms of jurisdiction. Under Gonzalez,
this makes Defendant's motion a 2255 one. Since Defendant
has already had a 2255 motion adjudicated, as we noted above,
we lack jurisdiction to consider his current one. Defendant
is free to seek a certificate of appealability from the Third
Circuit if he wishes to pursue the claim.
United States v. Schmutzler, No. 1:CR-13-0065, 2017
WL 930455, at *2 (M.D. Pa. Mar. 9, 2017).
did not seek leave to file a second or successive 28 U.S.C.
§ 2255 petition from the Third Circuit under §
2255(h). Rather, on March 24, 2017, Schmutzler filed an
“emergency” petition for mandamus from the Third
Circuit Court of Appeals, again, raising the same substantive
arguments. On May 1, 2017, the Third Circuit denied
Schmutzler's petition for relief, holding:
Schmutzler raises claims that could have been presented in
prior appeals; thus, he is not entitled to mandamus
relief…Further a §2255 motion filed in the
sentencing court is the presumptive means for a federal
prisoner to challenge the validity of a conviction or
sentence…If Schmutzler wishes to collaterally
challenge his conviction or sentence by filing a second
§2255 motion, he must once again comply with the
gatekeeping requirements prescribed by 28 U.S.C. §2244
and §2255(h). He may not use a mandamus petition to
evade these requirements.
In re Schmutzler, No. 17-1658, 2017 WL 1546140, at
*2 (3d Cir. May 1, 2017).
still did not, however, seek authorization to file a second
and successive petition under § 2255(h) from the Third
Circuit. Rather, on May 8, 2017, Schmutzler filed a
currently-pending motion to reopen his § 2255
proceedings because of purported ineffective assistance of
counsel for failing to raise his federalism/jurisdictional
claims. United States v. Schmutzler, No.
1:13-CR-00065, M.D. Pa., ECF No. 121.
days later, on May 18, 2017, rather than waiting for a
decision on that motion, Schmutzler filed his third petition
for relief pursuant to 28 U.S.C. § 2241 in this Court,
invoking the savings clause of 28 U.S.C. § 2255(e).
Schmutzler makes the same argument here that he is making in
his currently-pending motion before the sentencing court in
the Middle District of Pennsylvania.
petitioner is well aware, under 28 U.S.C. § 2255, a
federal prisoner who claims that his “sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). He may not challenge the legality
of his sentence through writ of habeas corpus, under the
savings clause, unless it appears that a § 2255 motion
is “inadequate or ineffective to test the legality of
his detention.” 28 U.S.C. § 2255(e). At
this stage, both the United States District Court for the
Middle District of Pennsylvania and the Third Circuit Court
of Appeals have recently informed Schmutzler that (1) the
federalism/jurisdictional claims are in the nature of §
2255 relief, and (2) his recourse is to seek a second or
successive petition under 28 U.S.C. § 2255(h).
Schmutzler apparently presumes that an application under
§ 2255(h) would be unsuccessful, so he has instead filed
a motion to re-open his § 2255 proceedings in the Middle
District of Pennsylvania under the same ineffective
assistance of counsel argument raised here. Because there is
a prior-pending motion to re-open his § 2255
proceedings, Schmutzler cannot demonstrate that his remedy
under § 2255 is “inadequate or ...