United States District Court, N.D. West Virginia, Clarksburg
JAMES S. FALLER, II, Petitioner,
JENNIFER SAAD, Respondent.
REPORT AND RECOMMENDATION
E. SEIBERT, UNITED STATES MAGISTRATE JUDGE
March 29, 2017, James S. Faller, III
(“Petitioner” or “Defendant”), acting
prose, 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
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.
12, 2015, after 10 days of trial, in which the Petitioner
represented himself, a jury found him guilty of all but one of
the counts in the indictment. 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.
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 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.