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Okeayainneh v. R. Myers

United States District Court, W.D. Louisiana, Lake Charles Division

April 5, 2019

JULIAN OKEAYAINNEH REG. # 20515-112
v.
R. MYERS

         SECTION P

          UNASSIGNED DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          KATHLEE KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by pro se petitioner Julian Okeayainneh. Okeayainneh is an inmate in the custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Institution at Oakdale, Louisiana. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this court.

         I.

         Background

         Okeayainneh challenges his 2012 conviction in the United States District Court for the District of Minnesota, of bank fraud, wire fraud, identity theft, and related charges. Doc. 1; see United States v. Okeayainneh et al., No. 0:11-cr-0087(1) (D. Minn. Aug. 15, 2012).

         On appeal, the Eighth Circuit affirmed Okeayainneh's conviction but found that a sentencing enhancement had been misapplied and remanded the case for resentencing. United States v. Adejumo, 772 F.3d 513 (8th Cir. 2014). Okeayainneh sought relief through a § 2255 motion and other pro se motions collaterally attacking his conviction, filed in the District of Minnesota, which the court denied. United States v. Okeayainneh, 2015 WL 13358236 (D. Minn. Dec. 21, 2015). He also appealed his new sentence to the Eighth Circuit, which denied relief on September 9, 2016. United States v. Okeayainneh, 668 Fed. App'x 681 (8th Cir. 2016). Okeayainneh then filed a second § 2255 motion and other collateral attacks on his conviction in the trial court, which denied same on August 1, 2018. Okeayainneh, No. 0:11-cr-0087(1), at doc. 1256. Okeayainneh appealed the court's ruling to the Eighth Circuit, which denied a certificate of appealability and dismissed the appeal on December 21, 2018. Id. at doc. 1276. Most recently, Okeayainneh filed two “Motions to Take Notice of Adjudicative Facts” in the trial court in January 2019, which are still pending. Id. at docs. 1277, 1279. He also filed a civil rights suit in the United States District Court for the Northern District of Texas against the United States Department of Justice and the Office of Personnel Management, seeking declaratory and injunctive relief based on FOIA requests he had issued to those agencies. Okeayainneh v. U.S. Dep't of Justice, No. 3:18-cv-1195 (N.D. Tex.). That suit is still pending. Id.

         Okeayainneh now alleges that the trial court has vacated his restitution judgment and that this decision functionally invalidates his conviction of bank fraud because it contradicts the jury's determination that there was a loss to the victim. Doc. 1. Accordingly, he seeks to have his conviction and sentence vacated. Id.

         II.

         Law & Analysis

         A. Screening of Habeas Corpus Petitions

         A district court may apply any and all of the rules governing habeas petitions filed under 28 U.S.C. § 2254 to those filed under § 2241. See Rule 1(b), Rules Governing § 2254 Cases in the United States District Courts. Rule 4 of the Rules Governing § 2254 Cases authorizes preliminary review of such petitions, and states that they must be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Id. at Rule 4. To avoid summary dismissal under Rule 4, the petition must contain factual allegations pointing to a “real possibility of constitutional error.” Id. at Rule 4, advisory committee note (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly, we review the pleadings and exhibits before us to determine whether any right to relief is indicated, or whether the petition must be dismissed.

         B. ...


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