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United States v. Fourstar

United States District Court, D. Montana, Great Falls Division

October 22, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
VICTOR CHARLES FOURSTAR, JR., Defendant/Movant.

          ORDER DENYING AND DISMISSING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          DANA L. CHRISTENSEN, CHIEF JUDGE

         On October 17, 2018, the Court revoked Defendant Fourstar's term of supervised release and sentenced him to serve ten months in prison, to be followed by 39 months' supervised release. The following day, Fourstar, acting pro se despite being represented by counsel, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.

         Fourstar was convicted in this Court in 2003 of one count of aggravated sexual abuse, a violation of 18 U.S.C. § 2241(a). He was sentenced to serve 188 months in prison, to be followed by a five-year term of supervised release. See Judgment (Doc. 110) at 2-3. He discharged his prison term on December 9, 2016. Since that time, his supervised release has been revoked three times.

         These prior proceedings are relevant to the varying procedural postures of the claims he now brings.

         I. Claims to Be Raised on Direct Review

          A § 2255 motion is the equivalent of a petition for writ of habeas corpus. See, e.g., United States v. Hayman, 342 U.S. 205, 210-19 (1952). "Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (quoting Reed v. Farley, 512 U.S. 339, 354 (1994), and Sunal v. Large, 332 U.S. 174, 178 (1947)). Consequently, district courts do not consider § 2255 motions before a judgment becomes final. See, e.g., Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987) (as amended); United States v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991); Rule 5, Rules Governing § 2255 Proceedings for the United States District Courts, advisory committee's note (quoting Womackv. United States, 395 F.2d 630, 631 (D.C. Cir. 1968)).

         Yesterday's revocation judgment against Fourstar is not yet final. Several of his claims must be raised on appeal if he intends to pursue them. See Mot. § 2255 (Doc. 262) at 4 ¶¶ A(1), B(1), (3); 5 ¶¶ B(3), C(1)-(2); Fourstar Aff. at 10 ¶ 2 (in part), ¶ 3. These claims are dismissed.

         II. Second or Successive Claims

          Some of Fourstar's claims challenge the legitimacy of his original conviction and sentence. See Mot. § 2255 at 6 ¶ D(2); Fourstar Aff. (Doc. 262) at 11¶¶5-6.

         The Court lacks jurisdiction to consider these claims because they could have been presented in one or the other of Fourstar's previous § 2255 motions. See, e.g., Mot. § 2255 (Doc. 130); Order (Doc. 131) (June-December 2005); Mot. § 2255 (Doc. 138); Order (Doc. 140) (October-November 2009); see also, e.g., Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam); Hill v. Alaska, 297 F.3d 895, 899 (9th Cir. 2002).

         The Court of Appeals would have jurisdiction to decide whether to authorize Fourstar to proceed with a successive motion under § 2255, and this Court may transfer a case to that court to cure a want of jurisdiction. See 28 U.S.C. § 1631. Fourstar alleges one claim that might arguably be based on a new constitutional rule. See 28 U.S.C. § 2255(h)(2). But his case had nothing to do with a definition of "crime of violence" (or, for that matter, "controlled substance offense"), see 18 U.S.C. § 2241(a); Presentence Report ¶¶ 19-36, so the rule of Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), could not apply. (Any such claim would also be barred by United States v. Blackstone, 903 F.3d 1020, 1028-29 (9th Cir. 2018).) Fourstar does not suggest he has newly discovered evidence of his innocence. See 28 U.S.C. § 2255(h)(1). Because there is no reason to suppose Fourstar might meet either of the two criteria of 28 U.S.C. § 2255(h), transfer is not in the interest of justice.

         These claims are dismissed for lack of jurisdiction.

         III. Rule 60(b) and Collateral Challenge to State Conviction

          Fourstar claims the Court did not adequately address his original § 2255 motion in 2005 because counsel refused to assist him in challenging the validity of a prior state sex offense conviction. See Mot. ...


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