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Westine v. Roberts

United States District Court, E.D. Kentucky, Central Division, Frankfort

June 3, 2015

JOHN G. WESTINE, Petitioner,
v.
BILLY ROBERTS, Jailer, Respondent.

MEMORANDUM OPINION & ORDER

GREGORY F. VAN TATENHOVE, District Judge.

John G. Westine, Jr., is an inmate confined in the Grayson County Detention Center, located in Leitchfield, Kentucky. On January 21, 2015, while confined in the Franklin County Jail located in Frankfort, Kentucky, Westine filed the instant pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1].[1] Westine challenges his 1992 Ohio federal conviction for money laundering, alleging that he is actually innocent of the offense, and that he is entitled to relief from that conviction under § 2241 by way of the savings clause of 28 U.S.C. § 2255.[2] Westine seeks an order vacating his 1992 money laundering conviction and his resulting sentence.

In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court must deny the relief sought "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 pursuant to Rule 1(b)). Because Westine is not represented by an attorney, the Court evaluates his petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003), and liberally construes his claims.

Having reviewed Westine's habeas petition, the Court will require a limited response, of no more than ten (10) pages, excluding attachments, from the Respondent as to one issue which Westine asserts in this proceeding.

I

On October 23, 1991, a federal grand jury in Ohio returned a thirty-six count indictment against Westine, charging him with conspiracy to commit mail fraud, wire fraud, the interstate transportation of property taken by fraud, and money laundering, in violation of 18 U.S.C. § 371; interstate transportation of property taken by fraud, in violation of 18 U.S.C. §§ 2314 and 2; mail fraud, in violation of 18 U.S.C. §§ 1341 and 2; wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; and money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i)-(B)(i) and 2. See United States v. John G. Westine, Jr., 21 F.3d 429, 1994 WL 88831, *1 (6th Cir. 1994) (table) (unpublished decision). The jury found Westine guilty on all counts.

On July 2, 1992, Westine was sentenced to a 235-month term of imprisonment and a 3-year term of supervised release. Westine appealed, arguing that the Government's evidence did not support the conviction for money laundering, and that his attorney's failure to raise this issue at trial resulted in a denial of his Sixth Amendment right to effective representation by counsel. The Sixth Circuit Court of Appeals concluded that both of these arguments lacked merit and affirmed Westine's conviction. United States v. Westine, 21 F.3d 429, 1994 WL 88831 (6th Cir. Mar. 17, 1994) (table) ( per curiam ).[3]

Because Westine filed so many unsuccessful collateral attacks on his conviction and sentence, the Sixth Circuit eventually entered an order in September 2002 prohibiting him from filing any document, either in the Ohio district court or the Sixth Circuit, challenging his 1992 convictions. See United States v. Westine, No. 1:01-CR-127-CBR [R. 337, therein; see also In re: John G. Westine, Jr., No. 02-3737 (6th Cir. Sept. 17, 2002).] That Order did not, however, deter Westine from filing collateral challenges in other district courts throughout the country as he was moved from one BOP facility to another. Westine's numerous civil actions challenging his 1992 criminal convictions are listed, and can be found, by accessing PACER, the federal judiciary's on-line data base.

In August 2014, Westine was indicted in this Court, charged with several counts of mail fraud, money laundering, and securities fraud, for his role in allegedly duping investors into purchasing interests in non-profitable oil wells. United States v. John G. Westine, Jr., No. 3:14-CR-10-GFVT-REW-1 (E.D. Ky. 2014). The case went to trial, and on January 16, 2015, the jury found Westine guilty of several counts of mail fraud, money laundering, and securities fraud, in violation of 18 U.S.C. §§ 1341, 1956(a)(1)(B), and 1956(h), as well as 15 U.S.C. § 78(j)(b). [ Id., R. 192; R. 193, therein.] The jury acquitted Westine of one count of mail fraud. [ Id. ] Westine has not been sentenced in the 2014 criminal proceeding.

II

Westine contends that his 1992 money laundering conviction (Count 36 of the Indictment) violates his right to due process of law guaranteed by the Fifth Amendment of the U.S. Constitution. Specifically, Westine alleges that the district court lacked subject matter jurisdiction over Count 36, and that at sentencing, the district judge violated Federal Rule of Criminal Procedure 32(c)(5) by failing to inform him of his statutory right to appeal an illegal sentence, as required by 18 U.S.C. § 3742.

Westine next alleges that based on United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020 (2008), his money laundering conviction under Count 36 of the Indictment should be set aside, because in Santos, the Supreme Court ruled that spending proceeds for business/normal operating expenses does not qualify as money laundering under 18 U.S.C. § 1956(h). Westine asserts that based on Santos, a merger problem exists as to his money laundering and mail fraud convictions. Westine further contends that Santos applies retroactively to his case, and that he is actually innocent of the money laundering offense of which he was convicted in his 1991 criminal proceeding. Based on Santos, Westine seeks an order setting aside his money laundering conviction.

A

As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a federal conviction or sentence, whereas a federal prisoner may file a § 2241 petition if he is challenging the execution of his sentence ( i.e., the BOP's calculation of sentence credits or other issues affecting the length of his sentence). See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); see also Charles v. Chandler, 180 ...


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