United States District Court, D. Oregon, Portland Division
J. Williams United States Attorney Hannah Horsley Assistant
United States Attorney Attorneys for United States of America
A. Weppner Law Office of Robert A. Weppner Attorney for
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
the Court are Defendant's motions (1) to withdraw his
plea under Federal Rule of Criminal Procedure
11(d)(2); (2) to correct his sentence under 28
U.S.C. §2255; (3) for relief under Federal Rule of Civil
Procedure 60(b)(6); and (4) for writ of habeas corpus under
28 U.S.C. § 2241. For the reasons below, Defendant's
motions under Fed. R. Crim P. 11(d)(2), § 2255, and
Fed.R.Civ.P. 60(b)(6) are DENIED. Defendant's motion
under § 2241 is transferred to the court of competent
jurisdiction pursuant to 28 U.S.C. § 1631.
November 15, 2011, Mr. Hodson was indicted with one count of
arson and one count of making and possessing an unregistered
destructive device. ECF 1. At Mr. Hodson's initial
appearance, Assistant Federal Public Defender Susan Russell
was appointed as counsel. ECF 6. In 2012, counsel filed a
notice of intent to present an insanity defense pursuant to
Fed. R. Crim P. 12.2. ECF 25. The parties agreed that Mr.
Hodson satisfied the federal standard for insanity on the
charged offenses. ECF 127 at 14. On August 20, 2012, Mr.
Hodson waived his right to a jury trial and proceeded with a
stipulated facts trial. ECF 39. The Court found Mr. Hodson
not guilty only by reason of insanity. ECF 40.
August 22, 2012, the Court entered Judgment and ordered Mr.
Hodson conditionally discharged under 18 U.S.C. § 4243.
ECF 40. The conditions of discharge included a prescribed
regimen of medical and psychiatric care and treatment,
subject to standard and special conditions. Id. at
2-3. Mr. Hodson remained in the community on conditional
release until April 2015. On April 7, 2015, following a
string of violations, the Court revoked Mr. Hodson's
conditional discharge and committed him to the care and
custody of the Attorney General for treatment. ECF 92; ECF
48, 68, 83. Mr. Hodson was hospitalized at FMC Rochester for
about 20 months. ECF 97.
December 1, 2016, the Court found Mr. Hodson again suitable
for conditional release. ECF 97. Mr. Hodson remained in the
community until August 14, 2017, when his conditional release
was revoked, and he was again remanded to the Bureau of
Prisons for care and treatment. ECF 115-18. On August 13,
2018, Mr. Hodson filed a pro se Motion to Withdraw Plea of
Guilty based on ineffective assistance of counsel. ECF 123.
He filed a pro se amended motion on August 22, 2018. ECF 124.
Counsel was appointed and, in February 2019, filed a Second
Amended Motion alleging ineffective assistance of counsel.
ECF 125, 128.
moves (1) to withdraw his plea under Fed. R. Crim. P.
11(d)(2); (2) to correct his sentence under 28 U.S.C. §
2255; (3) for relief under Fed.R.Civ.P. 60(b)(6); and (4) for
writ of habeas corpus under 28 U.S.C. § 2241.
motion to withdraw his plea under Fed. R. Crim. P. 11(d)(2)
lacks merit. Fed. R. Crim. P. 11(d)(2)(B) provides that
“[a] defendant may withdraw a plea of guilty or nolo
contendere . . . after the court accepts the plea, but before
it imposes sentence if . . . the defendant can show a fair
and just reason for requesting the withdrawal.”
Defendant did not enter of plea of guilty or nolo contendere.
Rather, he pleaded not guilty, provided notice of an insanity
defense under Fed. R. Crim. P. 12.2, and was found not guilty
only by reason of insanity following a stipulated facts
trial. Thus, Defendant's motion for relief under Fed. R.
Crim. P. 11(d)(2) is denied.
motion for relief under 28 U.S.C. § 2255 is also denied.
In general, a prisoner serving a federal sentence “may
move the court which imposed the sentence to vacate, set
aside or correct the sentence.” § 2255. But
because Defendant was acquitted, he is neither serving nor
challenging a federal sentence. See United
States v. Buddell, 187 F.3d 1137, 1141 (9th Cir. 1999)
(“Because Budell was acquitted, he is not a
‘prisoner in custody under sentence,' nor is he
challenging a sentence. Therefore, Budell's motion for a
discharge hearing and appointment of counsel under 18 U.S.C.
§ 4247 cannot be construed as a § 2255
motion.”). Defendant's motion for relief under
§ 2255 is therefore denied.
motion for relief under Fed.R.Civ.P. 60(b) is denied for the
same reasons. A Rule 60(b) motion may be used to attack
“some defect in the integrity of the federal habeas
proceedings.” Gonzalez v. Crosby, 545 U.S.
524, 532 (2005). If, however, “the motion presents a
‘claim,' i.e., ‘an asserted federal basis for
relief from a . . . judgment of conviction,' then it is,
in substance, a new request for relief on the merits and
should be treated as a disguised § 2255 motion.”
United States v. Washington, 653 F.3d 1057, 1063
(9th Cir. 2011). Defendant does not challenge some defect
from a previous habeas proceeding as, in fact, there was no
previous habeas proceeding. Instead, Defendant alleges
ineffective assistance of counsel to challenge the plea and
the Court's finding of not guilty by reason of insanity.
Thus, Defendant's Rule 60(b) motion must be treated as a
disguised § 2255 motion and is denied for the same
reasons stated above.
the Court lacks jurisdiction to hear Defendant's petition
for habeas corpus under 28 U.S.C. § 2241. In general, an
individual committed under 18 U.S.C. § 4243 may
challenge the legality of that detention by a habeas corpus
petition. 18 U.S.C. § 4247(g) (“Nothing contained
in section 4243, 4246, or 4248 precludes a person who is
committed under either of such sections from establishing by
writ of habeas corpus the illegality of his
detention.”); United States v. Vela, 624 F.3d
1148, 1162 (9th Cir. 2010) (Smith, J., dissenting)
(“Because an individual committed to a mental
institution is being ‘detained,' Vela may always
file a petition for a writ of habeas corpus under 18 U.S.C.
§ 4247(g).”); Harrison v. Ollison, 519
F.3d 952 (9th Cir. 2008) (“A federal prisoner may file
a habeas petition under § 2241 to challenge the legality
of a sentence when the prisoner's remedy under §
2255 is ‘inadequate or ineffective to test the legality
of his detention.'”). But a “habeas petition
filed pursuant to § 2241 must be heard in the custodial
court.” Hernandez v. Campbell, 204 F.3d 861,
865 (9th Cir. 2000). Mr. Hodson is currently in the custody