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Faller v. Saad

United States District Court, N.D. West Virginia, Clarksburg

March 28, 2018

JAMES S. FALLER, II, Petitioner,
v.
JENNIFER SAAD, Respondent.

          Keeley, Judge

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On March 29, 2017, James S. Faller, III (“Petitioner” or “Defendant”), acting pro[1]se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [ECF No. 1] (the “Petition”). Petitioner is a federal inmate housed at Forrest City Low in Forrest City, Arizona and is challenging the validity of his conviction obtained in United States District Court for the Western District of Kentucky. On September 29, 2017, the undersigned United States Magistrate Judge conducted a preliminary review of the file and determined that the petition should be construed as a motion filed pursuant to 28 U.S.C. § 2255. Because the Petitioner had not previously filed a § 2255 motion, the Court gave him notice of his right to consent to proceed under 28 U.S.C. § 2255 or to proceed as filed. ECF No. 7. On October 18, 2017, the Petitioner notified the Court that he elected to proceed on his § 2241 petition as filed. ECF No. 10. The matter is now pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2. For the reasons set forth below, the undersigned recommends that the petition be dismissed for lack of jurisdiction.

         II. BACKGROUND[2]

         On August 14, 2013, the grand jury in the Western District of Kentucky issued an indictment against the Petitioner on several counts of tax fraud, tax evasion, failure to timely file a U.S. Individual Income Tax Return 1040 for the 2006 through 2009 tax years, and filing false documents. ECF No. 1. More specifically, the Petitioner was charged with eleven counts as follows:

1. One count of corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws, a violation of 26 U.S.C. § 7212 (a).
2. One count of willfully attempting to evade the payment of a Trust Fund Recovery Penalty owing by him to the United States, pursuant to 26 U.S.C. § 7201.
3. Four counts of willfully attempting to evade his individual income taxes for the 2006 through 2009 tax years, pursuant to 26 U.S.C. § 7201.
4. One count of making and subscribing a false statement, Form 433-A, under the penalties of perjury, pursuant to 26 U.S.C. § 7206(1).
5. Four counts of willfully failing to file individual income tax returns for the 2006 through 2009 tax years in violation of 26 U.S.C. § 7203.

         On June 12, 2015, after 10 days of trial, in which the Petitioner represented himself[3], a jury found him guilty of all but one of the counts in the indictment.[4] The jury returned a not guilty verdict on Count 2 in which he was charged with willfully attempting to evade and defeat payment of a Trust Fine Recovery Penalty. ECF No. 223. On January 29, 2016, the Petitioner was committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 36 months as to each of Counts 1 and 3 through 7 and 12 months as each of Counts 8 through 11 in the Indictment, which were ordered served concurrently, for a total term of 36 months imprisonment. ECF No. 357 at 3. In addition upon release from imprisonment, he will be on supervised release for a term of 3 years as to each of Counts 3 through 6 and one year as to each of Counts 1 and 7 through 11, which shall run concurrently, for a total term of 3 years. Id. at 4. Finally, the Petitioner was ordered to pay restitution, in the amount of $143, 113, according to the payment schedule approved by the court. Id. at 5.

         On February 11, 2016, the Petitioner filed a Notice of Appeal. ECF No. 359. The Petitioner, through his court-appointed attorney and supplemental pro se briefing, raised seven arguments[5] that he asserted required the appellate court to dismiss his conviction. First, he argued that the police failed to preserve a Dell laptop computer which he claimed contained exculpatory evidence. Next, the Petitioner argued that the district court's refusal to order the government to disclose grand jury testimony of a witness he called at trial -- Special Agent Matthew Sauber -- constituted reversible error pursuant to the Jencks Act, 18 U.S.C. § 3500. Third, the Petitioner asserted that the district court's conduct showed improper bias, denying him a fair trial. The Petitioner's next set of arguments were that there was insufficient evidence to sustain his conviction. In addition, the Petitioner argued that his 26 U.S.C. § 7203 (willful failure to file) convictions must be dismissed as lesser included offenses of his 26 U.S.C. § 7201 (tax evasion) charges. The Petitioner also asserted that the government improperly bolstered Special Agent Sauber during closing arguments. Finally, the Petitioner argued that the district court erred in failing to hold a Franks hearing on his motion to suppress evidence found pursuant to the executed search warrant of his home and office. Finding no merit to any of the Petitioner's arguments, the United States Court of Appeals for the Sixth Circuit affirmed his conviction on January 10, 2017. See Case No. 16-5168 (6th Cir.), ECF No. 40-1.

         III. STAN ...


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