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United States v. Gillenwater

United States District Court, E.D. Washington

June 1, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
CHARLES LEE GILLENWATER, II, Defendant/Petitioner.



         BEFORE 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).

         I. BACKGROUND

         This 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.

         In 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. 2013)(“Gillenwater I”).

         On 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.

         On June 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).

         Gillenwater 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).

         Gillenwater 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.


         This court has jurisdiction by virtue of 28 U.S.C. § 2255.

         A. Custody Requirement

         A 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)).

         B. Cognizable Claims and Preliminary Review

         Section 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 hearing.

         The 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 jurisdiction.

         The §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)).

         A 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, ...

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