United States District Court, E.D. Wisconsin
THOMAS A. CENSKE, Petitioner,
MARK S. INCH, Respondent.
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
March 16, 2018, Petitioner Thomas Censke filed this petition
pursuant to 28 U.S.C. § 2241, asserting that he is
confined in violation of the Constitution. Petitioner was
convicted on July 9, 2009, in the district court for the
Western District of Michigan on four counts of mailing
threatening communications and was sentenced to 10 years
imprisonment. His conviction has already been twice reviewed
by the United States Court of Appeals for the Sixth Circuit.
United States v. Censke, 449 F. App'x 456 (6th
Cir. 2011) (vacating sentence on direct appeal); United
States v. Censke, 534 F. App'x 382 (6th Cir. 2013)
(affirming sentence imposed on remand). Although he was in
the custody of the Federal Bureau of Prisons and incarcerated
at the Brown County Jail in Green Bay, Wisconsin, at the time
he filed his petition, Petitioner has since apparently been
released from confinement and filed a change of address
notification indicating that he his now at Attic Correctional
Service in Menominee, Michigan, presumably on supervised
release. ECF No. 6.
Rule 1(b) of the Rules Governing § 2254 Cases and Civil
Local Rule 9(a)(2), the court applies the Rules Governing
§ 2254 cases to petitions for a writ of habeas corpus
under 28 U.S.C. § 2241. Accordingly, I must give the
case prompt initial consideration pursuant to Rule 4 of the
Rules Governing § 2254 Cases, which reads:
If it plainly appears from the face of the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner. If
the petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other response
within a fixed time . . . .
Rule 4, Rules Governing § 2254 Cases. During my initial
review of habeas petitions, I look to see whether the
petitioner has set forth cognizable constitutional or federal
law claims and exhausted available remedies.
prisoners who seek to collaterally attack their conviction or
sentence must ordinarily bring an action under § 2255,
‘the federal prisoner's substitute for habeas
corpus.'” Camacho v. English, 872 F.3d
811, 813 (7th Cir. 2017) (quoting Brown v. Rios, 696
F.3d 638, 640 (7th Cir. 2012)). A federal prisoner may,
however, file a petition under § 2241 “if his
section 2255 remedy ‘is inadequate or ineffective to
test the legality of his detention.'”
Brown, 696 F.3d at 640 (quoting 28 U.S.C. §
2255(e)). “This generally requires a structural problem
in § 2255 that forecloses even one round of effective
collateral review, unrelated to the petitioner's own
mistakes.” Poe v. LaRiva, 834 F.3d 770, 772
(7th Cir. 2016). The mere fact that Petitioner's claim
would be a second or successive § 2255 motion does not
render § 2255 inadequate or ineffective. See In re
Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998). To
invoke the § 2255(e) Savings Clause and proceed under
§ 2241, a prisoner must demonstrate (1) that his
argument relies on a statutory interpretation case that could
be invoked in a second or successive § 2255 motion; (2)
that the new rule applies retroactively on collateral review
and could not have been invoked in earlier proceedings; and
(3) the error is grave enough to constitute a miscarriage of
justice. Camacho, 872 F.3d at 813 (citing
Brown, 696 F.3d at 640).
petition must be dismissed. Petitioner's underlying
conviction and sentence were imposed by the United States
District Court for the Western District of Michigan. Because
this court is not “the court which imposed the
sentence, ” this court is without jurisdiction in the
first instance to consider a motion to vacate, set aside, or
correct the sentence on the grounds that it was imposed in
violation of the Constitution or laws of the United States.
28 U.S.C. § 2255(a). Moreover, Petitioner has already
sought relief from his conviction under § 2255.
Censke v. United States, No. 2:14-cv-179, 2014 WL
4542488 (W.D. Mich. Sept. 11, 2014) (denying § 2255
motion). He would therefore have to seek authorization from
the Court of Appeals to file a second or successive petition.
28 U.S.C. § 2255(h).
Petitioner invoke the Savings Clause in § 2255(e) and
proceed on a § 2241 petition. He has already attempted
that route twice. See Censke v. Fox, 659 F.
App'x 485 (10th Cir. 2016) (per curiam) (affirming
dismissal of § 2241 petition for lack of jurisdiction);
Censke v. Matevousian, No. 17-16422, 2017 WL 6887306
(9th Cir. Dec. 18, 2017) (denying certificate of
appealability for “disguised section 2255
motion”). Principles of res judicata, if not the same
reasoning, bar him from raising the same argument yet again
in this court.
IT IS ORDERED that this petition is summarily
DISMISSED for lack of jurisdiction pursuant
to Rule 4 of the Rules Governing § 2254 Cases.
disposed of this petition, the Court must decide whether to
issue a certificate of appealability. Rule 11(a), Rules
Governing § 2254 Petitions. The certificate of
appealability may issue only if the applicant makes a
substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). The standard for making a
“substantial showing” is whether
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted) (citing Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983)). If the
court issues a certificate of appealability it must indicate
on which specific issue or issues the petitioner has
satisfied the “substantial showing” requirement.
28 U.S.C. § 2253(c)(3).
conclude that reasonable jurists could not debate the
outcome, and the petitioner has not shown the denial of any
constitutional right. The ...