Filed: Feb. 16, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 16, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-10525 Summary Calendar ROBERT S. ORTLOFF, Petitioner-Appellant, versus L. E. FLEMING, Federal Medical Center - Fort Worth, Respondent-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CV-00749-Y - Before SMITH, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Robert Ortlof
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 16, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-10525 Summary Calendar ROBERT S. ORTLOFF, Petitioner-Appellant, versus L. E. FLEMING, Federal Medical Center - Fort Worth, Respondent-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CV-00749-Y - Before SMITH, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Robert Ortloff..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 16, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10525
Summary Calendar
ROBERT S. ORTLOFF,
Petitioner-Appellant,
versus
L. E. FLEMING, Federal Medical Center - Fort Worth,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CV-00749-Y
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Robert Ortloff, federal prisoner # 19317-008, appeals the
denial of his 28 U.S.C. § 2241 petition for habeas corpus. Ortloff
is seeking release on parole relative to his 50-year sentence for
several offenses that arose from the manufacture, mailing, and
injurious detonation of a pipe bomb, and his 40-month consecutive
sentence for possessing a silencer. We AFFIRM.
In 1999 the United States Parole Commission (the Commission)
continued Ortloff’s parole hearing for 15 years, although he was
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
parole-eligible, on grounds that he was a more serious risk than
the Commission’s guidelines appeared to indicate. A district court
in Wisconsin denied Ortloff’s 28 U.S.C. § 2241 habeas corpus
petition and the United States Court of Appeals for the Seventh
Circuit affirmed with an unpublished opinion.
In February 2001, Ortloff received an interim hearing by the
Commission relative to the 15-year continuance. The Commission
upheld this ruling, which was affirmed by the National Appeals
Board. In September 2002, Ortloff filed a 28 U.S.C. § 2241 habeas
petition in the district court for the Northern District of Texas,
the denial of which is the subject of Ortloff’s present appeal.
Ortloff contends that the district court reversibly erred
by dismissing the following claims as being successive and an abuse
of the writ. In his claim two, Ortloff challenged the Commission’s
determinations of fact, as described in its notice of action to
Ortloff. In claim three, Ortloff asserted that the Commission’s
decision in his case was unlawfully tainted by political
overreaching of Senator John McCain. His fourth claim asserted
that the Commission ignored the Sentencing Guidelines in making its
decision in his case. In claim six, Ortloff generally challenged
the Commission’s decision as being unjust. He also contends the
court erred when it refused to rule on his allegations of fraud by
the FBI during the investigative and prosecution stages, although
he did not allege this as a separate claim. Ortloff has abandoned
his other habeas claims.
2
The specific limitations on filing successive 28 U.S.C. § 2255
motions and 28 U.S.C. § 2254 habeas petitions that were enacted as
28 U.S.C. § 2244(b) under the AEDPA do not literally apply to 28
U.S.C. § 2241 habeas petitions. See Zayas v. INS, 311 F.3d 247,
256-57 (3d Cir. 2002). However, this court has held that the
version of 28 U.S.C. § 2244(a) that was in effect prior to
enactment of the AEDPA bars successive 28 U.S.C. § 2241 petitions
that are based on the same claim. See United States v. Tubwell,
37
F.3d 175, 177-78 (5th Cir. 1994). Accordingly, the present version
of 28 U.S.C. § 2244(a), which is very similar, applies to Ortloff’s
case.
Ortloff’s specific habeas claims have all been fully litigated
in the Wisconsin district court and the Seventh Circuit Court of
Appeals. Ortloff argues that he has raised claims that had become
ripe for review only since his 1999 parole hearing. However, he
refers only to the work of a Department of Justice Task Force that
investigated allegations of wrongdoing by the FBI. Although
Ortloff raised issues involving the Task Force in his previous
petitions, the instant habeas action is apparently the first he has
filed since learning that the Task Force found no wrongdoing in the
investigation of his case. Despite that finding, Ortloff continues
to assert that the FBI mishandled the evidence in the case against
him. This assertion goes to the validity of his conviction and is
not properly asserted in an action under 28 U.S.C. § 2241. See,
e.g., Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997); 28 U.S.C. §
3
2255. Therefore the district court did not err by denying relief
on this claim, and on Ortloff’s other claims.
Ortloff contends that he is entitled to relief because
the district court denied his request for appointment of counsel.
However, a petitioner serving a noncapital sentence has no right to
appointment of counsel in a habeas proceeding. McFarland v. Scott,
512 U.S. 849, 857 n.3 (1994). Nor has Ortloff shown that the ends
of justice required that counsel be appointed for him. See
Schwander v. Blackburn,
750 F.2d 494, 502-03 (5th Cir. 1985).
Ortloff contends that he is entitled to relief because
the district court abused its discretion by denying his request for
discovery. The district court held, first, that he was
not entitled to discovery because his motion therefor was not
properly before the court, due to his failure to comply with the
local rules applicable to motions. Ortloff does not contest this
ruling in his briefs.
Ortloff argues that he is entitled to discovery because
his prison law library is inadequate. He also asserts that
discovery may reveal that Senator McCain influenced the Commission
to take adverse action in his case, and he alleges that prison
personnel took unspecified relevant evidence from him. This court
has held, in a 28 U.S.C. § 2254 case, that conclusional allegations
do not entitle a petitioner to discovery and that Rule 6 of the
Rules Governing Section 2254 Cases “does not authorize fishing
expeditions.” Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).
4
There is no valid reason why the law should be different for
discovery in a 28 U.S.C. § 2241 habeas case such as this.
Ortloff contends that the district court erred by not
providing him with an evidentiary hearing. He asserts that
a hearing is needed to resolve unspecified questions of fact
and that he has not had adequate access to legal materials.
However, a hearing is not required “when the record is complete or
the petitioner raised only legal claims that can be resolved
without the taking of additional evidence.” Ellis v. Lynaugh,
873 F.2d 830, 840 (5th Cir. 1989). Ortloff is not entitled to
an evidentiary hearing because he has not shown that there is a
factual dispute which, if it were resolved in his favor, would
entitle him to relief. See
Ward, 21 F.3d at 1367. The district
court’s denial of all relief to Ortloff is due to be, and it is
hereby AFFIRMED.
IT IS FURTHER ORDERED that Ortloff’s motions for the
appointment of counsel, and for the imposition of sanctions on the
appellee, are DENIED.
AFFIRMED; MOTIONS DENIED.
5
