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Luster v. Oddo

United States District Court, M.D. Georgia, Macon Division

August 31, 2017

DAVID ANTOINE LUSTER, Petitioner,
v.
L J ODDO, Respondent.

          ORDER

          C. ASHLEY ROYAL, SENIOR JUDGE UNITED STATES DISTRICT COURT.

         Petitioner DAVID ANTOINE LUSTER, an inmate confined at the Allenwood United States Penitentiary in White Deer, Pennsylvania, paid the $5.00 filing fee and filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania. ECF No. 1. Petitioner also filed a memorandum in support of his petition. ECF No. 2. The Middle District of Pennsylvania subsequently transferred Petitioner's case to the Middle District of Georgia. ECF No. 5, 6. After reviewing the petition and Petitioner's litigation history, the Court determines that this action must be DISMISSED for lack of jurisdiction.

         I. Current 28 U.S.C. § 2241 Petition and Transfer to this Court

         In his Petition, Petitioner asserts that he was convicted and sentenced in the Middle District of Georgia and that his sentence mandates his participation in the Inmate Financial Responsibility Program (“IFRP”) pursuant to 18 U.S.C. § 3663A(a)(1), (c), which requires a person convicted of “a crime of violence” to make restitution to the victim of his crime. See ECF No. 1 at 1-2. Petitioner contends that the indictments in his criminal cases failed to allege the “use, attempted use, or threatened use of physical force, ” and thus, that they were insufficient to subject him to participation in the IFRP. ECF No. 2 at 2. Petitioner states that this argument would have been considered “frivolous” before the “legal landscape” was substantially changed by four Supreme Court decisions: Apprendi v. New Jersey, 530 U.S. 466 (2000); Johnson v. United States, 559 U.S. 1333 (2010); Alleyne v. United States, 133 S.Ct. 2151 (2013); and Johnson v. United States, 135 S.Ct. 2551 (2015). ECF No. 1 at 2; ECF No. 2 at 3.

         Based on these statements, the District Court for the Middle District of Pennsylvania determined that Petitioner's only available method for seeking relief was through a petition for habeas corpus under 28 U.S.C. § 2255, which had to be presented to the sentencing court. ECF No. 5 at 6-7. Thus, the Pennsylvania District Court transferred Petitioner's petition to this Court. Id. at 8.

         II. Conviction and Previous Litigation in this Court

         Petitioner's petition is now before this Court pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, which provides that

[t]he clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

         Rule 4 is applicable to § 2241 petitions under Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts.

         Petitioner was charged in five separate indictments with eight counts of bank robbery and five counts of carrying a firearm during a crime of violence. See United States v. Luster, 5:03-cr-52-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-98-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-99-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-100-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-105-CAR (M.D. Ga.). On April 1, 2004, Petitioner pled guilty to eight counts of bank robbery and two counts of using or carrying a firearm during a crime of violence, and he is currently serving a total of 535 months in prison. ECF No. 44, 47, 80 in United States v. Luster, 5:03-cr-52-CAR (M.D. Ga. Sept. 9, 2009).

         Petitioner filed a direct appeal, and the Eleventh Circuit affirmed his conviction and sentence on January 10, 2005. ECF No. 56 in United States v. Luster, 5:03-cr-52-CAR (M.D. Ga. Feb. 9, 2005). Moreover, Petitioner has filed at least five 28 U.S.C. § 2255 motions challenging his conviction or sentence. See ECF No. 57, 104, 110, 113, & 119 in United States v. Luster, 5:03-cr-52-CAR (M.D. Ga.). Additionally, Petitioner has, on numerous occasions, requested the Eleventh Circuit to authorize the district court to consider a second or successive § 2255 petition. His criminal docket currently shows ten orders from the Eleventh Circuit denying these requests. ECF No. 102, 112, 116, 117, 121, 122, 125, 127, 128, & 129 in United States v. Luster, 5:03-cr-52 (M.D. Ga.).

         III. This Court's Lack of Jurisdiction

         As the District Court for the Middle District of Pennsylvania recognized, collateral attacks on the validity of a federal conviction or sentence must generally be raised in a motion brought under 28 U.S.C. § 2255. ECF No. 5 at 6-7; Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). If, however, this Court treats Petitioner's current petition as a motion under § 2255, the Court does not have jurisdiction because the Eleventh Circuit has not granted Petitioner permission to file a second or successive § 2255 motion. See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3)(A).

         This Court also does not have jurisdiction to consider a § 2241 petition for two reasons. First, the Court does not have jurisdiction over respondent L. J. Oddo, the warden at Allenwood United States Penitentiary in White Deer, Pennsylvania. See Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (“The plain language of the habeas statute . . . confirms the general rule that for core habeas petitions ...


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