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DeFoggi v. United States

United States District Court, D. New Jersey

December 30, 2019

TIMOTHY R. DEFOGGI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Timothy R. DeFoggi, 56316-037 Fort Dix Federal Correctional Institution Petitioner Pro se

          John Andrew Ruymann, Chief, Civil Division Susan R. Millenky, AUSA Office of the U.S. Attorney Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Timothy DeFoggi, a prisoner presently confined at FCI Fort Dix, New Jersey, filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, arguing that he was “wrongly convicted of at least (3) imaginary crimes.” ECF No. 1 at 1 (emphasis in original). He filed a motion for immediate relief and a motion to expedite. ECF Nos. 2, 10, & 16. Respondent United States filed a Motion to Dismiss arguing that the Petition should be dismissed for lack of jurisdiction. ECF No. 14. Petitioner opposes the motion to dismiss. ECF No. 15. The Motion is now ripe for disposition. For the reasons that follow, the Court will grant the motion to dismiss. Petitioner's motions will be terminated.

         I. BACKGROUND

         A jury in the United States District Court for the District of Nebraska convicted Petitioner of knowingly engaging in a child exploitation enterprise, 18 U.S.C. § 2252A(g); conspiracy to advertise child pornography, 18 U.S.C. §§ 2251(d)(1), (e); conspiracy to distribute child pornography, 18 U.S.C. §§ 2252A(a)(2), (b)(1); and knowingly accessing a means or facility of interstate commerce to view child pornography, 18 U.S.C. § 2252A(a)(5)(B). United States v. DeFoggi, No. 8:13CR105 (D. Neb. Jan. 6, 2015). The Eighth Circuit reversed the exploitation enterprise conviction and remanded for resentencing. United States v. DeFoggi, 839 F.3d 701, 709-11, 713 (8th Cir. 2016).

         ORDER

         At resentencing, the district court gave Petitioner 75- months for each of the affirmed convictions to be served consecutively, resulting in a total term of 300 months. DeFoggi, No. 8:13CR105 (D. Neb. Feb. 8, 2017) (amended judgment of conviction). The Eighth Circuit affirmed. United States v. DeFoggi, 878 F.3d 1102 (8th Cir.) (per curiam), cert. denied, 138 S.Ct. 2643 (2018).

         Petitioner filed a motion to correct, vacate, or set aside his federal sentence under 28 U.S.C. § 2255 raising sixteen ineffective assistance of counsel claims on September 4, 2018. The sentencing court denied the motion on September 11, 2018. United States v. DeFoggi, No. 8:13CR105, 2018 WL 4354951 (D. Neb. Sept. 11, 2018), judgment entered, No. 8:13CR105, 2018 WL 4361916 (D. Neb. Sept. 11, 2018). The Eighth Circuit denied a certificate of appealability. United States v. DeFoggi, No. 18-3172 (8th Cir. July 2, 2019). This § 2241 petition followed.

         Petitioner argues that his convictions are invalid. He presents four grounds for this Court's review: (1) the indictment was unconstitutionally vague; (2) the District of Nebraska lacked jurisdiction over his criminal trial; (3) his trial and appellate counsels were ineffective[1]; and (4) the charges violated the First Amendment because the conduct at issue was only “fantasy.” ECF No. 1 at 9-82.

         Respondent United States now moves to dismiss the petition based on a lack of jurisdiction under § 2241. ECF No. 14. It argues the claims raised in the petition may only be brought in a § 2255 proceeding and that Petitioner does not qualify for the savings clause of § 2255(e). Petitioner opposes the motion. ECF No. 15.[2]

         II. DISCUSSION

         A. Le ...


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