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Kapenekas v. Sepanek

United States District Court, Sixth Circuit

July 8, 2013

JOHN KAPENEKAS, Petitioner,
v.
MICHAEL SEPANEK, Warden, Respondent.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, Jr., District Judge.

John Kapenekas, an inmate confined in the Federal Correctional Institution in Ashland, Kentucky, has filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal conviction. [D. E. No. 1]

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Kapenekas' petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Kapenekas' factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Having reviewed the habeas petition, the Court must deny it because Kapenekas can not pursue his claims in a habeas corpus proceeding under § 2241.

KAPENEKAS' CRIMINAL CONVICTION AND PRIOR COLLATERAL CHALLENGES

On September 24, 2008, Kapenakas pleaded guilty in federal court in Aberdeen, Mississippi, to three counts of a five-count indictment which alleged, among other things, that he had coerced and enticed a fourteen-year-old minor to engage in sexually explicit conduct for the purposes of producing pornography. United States v. Kapenekas, No. 1:08-CR-23-MPM-SAD-1 (N.D. Miss. 2008) ("the Sentencing Court"). On January 8, 2009, the Sentencing Court imposed a 180-month (15 year) prison term on each of the three counts, to be served concurrently, plus a 5-year supervised release term. [R. 49, therein] Kapenekas reserved the right to appeal the denial of a pretrial motion to suppress evidence, but he did not appeal the ruling.

In September 2009, Kapenekas filed a motion in the Sentencing Court to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that his offenses were insufficiently charged and that they did not invoke federal jurisdiction under the Commerce Clause of the U.S. Constitution. [D. E. No. 52, therein] Kapenekas noted that Counts One, Two, Three and Four of the Indictment charged that between April 28, 2007 and May 2, 2007, he (Kapenekas)

did knowingly employ, use, coerce and entice a 17-year-old minor female to engage in sexually explicit conduct for the purpose of producing visual depictions of said sexually explicit conduct, using materials that had been mailed, shipped and transported in interstate and foreign commerce, in violation of Title 18, United States Code, Sections 2251(a) and 2256(2)(A).

Kapenekas further noted that Counts Five, Six, and Seven of the Indictment charged him with engaging in the same conduct between March 2, 2007, and July 27, 2007. Kapenekas argued, however, that because no count alleged that he knew or had "reason to know that such visual depictions will be transported in interstate or foreign commerce or mailed, " the Indictment was constitutionally defective and the Sentencing Court lacked jurisdiction over his criminal proceeding. The government responded that that the Sentencing Court had jurisdiction over Kapenekas' criminal proceeding because the Indictment tracked the language of 28 U.S.C. § 2251(a).[1]

The Sentencing Court agreed with the government, finding that the statutory language of § 2251(a) applied to the circumstances of Kapenekas' case, wherein "the images were produced using materials, such as cameras, film, memory devices like memory sticks, S.D. chips or CDs, that had been shipped or transported in interstate or foreign commerce." [D. E. No. 56, therein]; see also United States v. Kapenekas, Civil Action No. 1:08CR23, 2010 WL 583916, at *2 (N. D. Miss. February 16, 2010). The Sentencing Court noted that Lee County Investigator Scott Reedy stated in his affidavit that the cameras and flash cards used to manufacture the photos in Kapenekas' case were manufactured in China and therefore necessarily had to have traveled in interstate commerce. Id. In rejecting Kapenekas' argument, the Sentencing Court stated:

The language of § 2251 is abundantly clear that a conviction may be supported if the pornography "was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, " and there is no way in which this language can simply be disregarded, as petitioner seeks for this court to do.

Id.

Kapenekas further argued that his plea agreement was breached because he

failed to appeal of the denial of his suppression motion, which appeal the plea agreement specifically allowed him to pursue. The Sentencing Court also rejected that argument, stating that while the plea agreement between Kapenekas and the government did permit Kapenekas to appeal the order denying his motion to suppress, "...appeals are obviously not self-executing. Petitioner seems to suggest that it was the government's responsibility to file an appeal on his behalf, but this argument borders on frivolous. Petitioner's motion to vacate or set aside his guilty plea is therefore denied in its entirety." Id., at *3.

Although the Sentencing Court subsequently granted Kapenekas a certificate of appealability ("COA") on the issue of whether § 2251(a), as applied to him, was an unconstitutional extension of the Commerce Clause [D. E. No. 63, therein], the Fifth Circuit rejected that argument, finding that Kapenekas' as-applied constitutional challenge to § 2251(a) was a non-jurisdictional defect (in the trial court proceedings) which Kapenekas had waived by entering a valid guilty plea. United States v. Kapenekas, 413 F.Appx. 778, 779 (5th Cir. 2011). Kapenekas also argued on appeal that the indictment and the plea agreement to which he had agreed omitted an essential element of the offense, i.e., the charge that he actually "produced" visual depictions. The Fifth Circuit refused to consider Kapenakas' additional claim because he failed to raise it in ...


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