United States District Court, E.D. Washington
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
R. SUKO SENIOR U.S. DISTRICT JUDGE
THE COURT is Petitioner's pro se Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (ECF No. 361).
matter arises from the conviction by jury trial of Petitioner
Charles Lee Gillenwater. In August 2011, the Grand Jury
returned an Indictment charging Gillenwater with two counts
of Transmission of Threatening Interstate Communications to a
government employee in violation of 18 U.S.C. § 875(c).
The Government filed a Superseding Indictment adding a third
count of Transmission of Threatening Communication by U.S.
Mail in violation of 18 U.S.C. § 876(c). After the
federal public defender moved to withdraw, the court
appointed attorney Frank Cikutovich to represent Gillenwater.
September 2011, then Chief Judge Rosanna Peterson ordered a
psychological evaluation and a competency hearing. On January
6, 2012, a competency hearing was held where a disruptive
outburst from Gillenwater prompted the court to remove him
from the courtroom. On interlocutory appeal from the
court's order declaring Gillenwater incompetent to stand
trial, the Ninth Circuit Court of Appeals ruled that
Gillenwater's constitutional right to testify at the
competency hearing had been violated and remanded the matter
for a new competency hearing. See U.S. v.
Gillenwater, 717 F.3d 1070 (9th Cir.
remand, the case was reassigned to the undersigned judge. On
September 24, 2013, the court determined that Gillenwater was
not competent to stand trial and authorized involuntary
medication with haloperidol decanoate pursuant to Sell v.
U.S., 539 U.S. 166 (2003). Gillenwater appealed the
involuntary medication order and the Ninth Circuit affirmed
the court's Order in U.S. v. Gillenwater, 749
F.3d 1094 (9th Cir. 2014) (“Gillenwater
II”). On December 15, 2014, the U.S. Supreme Court
denied Gillenwater's pro se petition for rehearing.
16, 2015, the court entered an Order declaring Gillenwater
competent to stand trial. On June 30, 2015, Gillenwater was
convicted of Counts 2 and 3 (a §875(c) and §876(c)
violation). Gillenwater was sentenced to time served followed
by a three-year term of supervised release. (ECF No. 331).
appealed his conviction claiming first that the 4-year
pretrial delay violated his constitutional right to speedy
trial and prejudiced his defense at sentencing and second,
challenging the denial of his Rule 29 motion for acquittal.
The Ninth Circuit Court of Appeals rejected his arguments
noting that the delay was “largely attributable to
Gillenwater's own appeals and the district court's
efforts to restore him to competency.” U.S. v.
Gillenwater, 669 Fed.Appx. 844 (9th Cir.,
Oct. 18, 2016)(“Gillenwater III”).
Gillenwater petitioned the U.S. Supreme Court for writ of
certiorari, but the petition was denied on February 27, 2017
and became final on that day. Gonzalez v. Thaler,
565 U.S. 134 (2012).
timely filed his § 2255 motion on April 10, 2017. 28 U.S
.C. § 2255(f)(1). He asserts at least 14 grounds under
which he claims relief: (1) Defendant's right to speedy
trial under the Sixth Amendment was abridged; (2) the court
was without jurisdiction to act upon “the first of many
deprivations of fundamental…rights” (ECF No.
361-1 at 8; (3) 28 U.S.C. § 3161(h)(1)(a) is
unconstitutional because authority has been “usurped
from the impartial Jury”; (4) Local Rule 83.2(d)
abridged the Defendant's right of access to the court;
(5) the court's order directing the involuntary
administration of antipsychotic medication violated the
Conventions Against Torture, and 18 U.S.C. §2340 18
U.S.C. § 2340A, which are “unconstitutionally
narrow”; (6) 18 U.S.C §875(c) and §876(c) are
unconstitutional and violate due process because the law
imposes “strict liability” and “usurp[s]
the domain of the impartial Jury” (ECF No. 361-1 at
10); (7) Petitioner's right to speedy trial was violated
when his pretrial incarceration exceeded 70 days without jury
authorization; (8) the judge tampered with a witness by
violating Defendant's right to speedy trial and ordering
forced medication; (9) deprivation of due process “in
the absence of unanimous determination by an impartial
Jury” (ECF No. 361-1 at 11); (10) the trial judge's
evidentiary ruling violated Federal Rule of Evidence 702
thereby violating Defendant's constitutional rights; (11)
improper delegation of discretionary power to the court
usurping the right to an impartial trial by jury; (12)
adverse evidentiary ruling violated the Defendant's right
to have a jury determine “relevancy and admissibility
issues.” (13) ineffective assistance of counsel
(asserting numerous grounds against pretrial, trial, and
appellate counsel); and (14) Defendant is entitled to retrial
due to the deprivation of constitutional rights.
JURISDICTION AND LEGAL STANDARDS
court has jurisdiction by virtue of 28 U.S.C. § 2255.
petition for writ of habeas corpus under 28 U.S.C. §
2255 may only be filed by “[a] prisoner in
custody.” The “in custody” requirement is
jurisdictional in nature and applies at the time the petition
is filed. United States v. Reves, 774 F.3d 562,
564-65 (9th Cir. 2014). Although Gillenwater is no longer
incarcerated, Gillenwater is serving a term of Supervised
Release which is set to expire on September 22, 2018. The
Ninth Circuit has held that a federal defendant who is
“subject to supervised release ... is in
‘custody' ... [and] may seek relief pursuant to 28
U.S.C. § 2255.” Matus-Leva v. United
States, 287 F.3d 758, 761 (9th Cir.2002) (citing
Jones v. Cunningham, 371 U.S. 236, 242-43, (1963)).
Cognizable Claims and Preliminary Review
2255 allows a prisoner in federal custody to move the
sentencing court to vacate, set aside or correct the sentence
if he claims the right to be released upon any of the
following four narrow grounds: 1) the sentence was imposed in
violation of the Constitution or laws of the United States;
2) that the court was without jurisdiction to impose such
sentence; 3) that the sentence was in excess of the maximum
authorized by law; or 4) is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a). If there is no alleged lack
of jurisdiction or constitutional error, there is no basis
for collateral relief under § 2255 unless the error
constituted a “fundamental defect which inherently
results in a complete miscarriage of justice.”
Davis v. U.S., 417 U.S. 333, 346 (1974)(quoting
Hill v. U.S., 368 U.S. 424, 428 (1962)).The burden
is on the Petitioner to show his entitlement to relief under
§ 2255 including his entitlement to an evidentiary
court notes that Petitioner has made an assertion of lack of
jurisdiction in the underlying case. Such assertions do not
deprive this court of jurisdiction to adjudicate the §
2255 Motion as the statute enumerates jurisdiction for the
very purpose of determining whether the trial court lacked
§2255 Motion is subject to preliminary review to
determine whether an Answer or other response is required.
Rule 4(b), Rules Governing § 2255 Proceedings. A
district court may deny a § 2255 motion without an
evidentiary hearing if the movant's allegations, viewed
against the record, either do not state a claim for relief or
are so palpably incredible or patently frivolous as to
warrant summary dismissal. United States v. Burrows,
872 F.2d 915, 917 (9th Cir. 1989). It is also well-settled
that the law of the case doctrine precludes the reexamination
of issues decided, either expressly or by necessary
implication, in a previous appeal. See United States v.
Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (citing
In re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir.
1996) (“[T]he decision of an appellate court on a legal
issue must be followed in all subsequent proceedings in the
same case”); Odom v. United States, 455 F.2d
159, 160 (9th Cir. 1972) (“The law in this circuit is
clear that when a matter has been decided adversely on appeal
from a conviction, it cannot be litigated again on a 2255
motion”) (some citations omitted)).
petitioner “who is able to state facts showing a real
possibility of constitutional error should survive Rule 4
review.” Calderon v. United States Dist.
Court, 98 F.3d 1102, 1109 (9th Cir.1996) (Schroeder, C.J
., concurring) (referring to Rules Governing § 2254
Cases). “[I]t is the duty of the court to screen out
frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary
answer.” Advisory Committee Note (1976), Rule 4, ...