Gewin v. Dodrill

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BARRY WILLIAM GEWIN,
Petitioner,
v.
SCOTT DODRILL, Warden for the F ederal Civil Action No. 10-782 (CKK)
Correctional Institution (FCI) at Fort Dix,
New Jersey, and
UNITED STATES OF AMERICA,
Respondents.
MEMoRANnUM oPINIoN
(Aprii 25, 2011)
Nearly seven years ago, Barry William Gewin was tried and convicted in this Court in
connection with his role in the manipulation and fraudulent trading of securities in a so-called
"pump and dump scheme." Mr. Gewin was sentenced to 108 months’ incarceration and three
years’ supervised release, and was ordered to pay substantial criminal monetary penalties,
including a fine and restitution Subsequently, Mr. Gewin was held in civil contempt for his
failure to comply with this Court’s orders concerning payment of the criminal monetary penalties
imposed, and Mr. Gewin’s criminal sentence was suspended while he remained incarcerated for
civil contempt-which remains the state of affairs today. Over the years that have intervened
since his conviction, Mr. Gewin has challenged his original conviction, sentence, and
incarceration for criminal contempt on direct appeal and through various collateral proceedings
in this Court and several others. Today, the Court closes another chapter in this tale. Two of Mr.
Gewin’s several petitions for a writ of habeas corpus remain outstanding, and they are both
resolved in this memorandum opinion and the accompanying orders. As set forth be1ow, both of
Mr. Gewin’s outstanding petitions, which are essentially coterminous, are procedurally barred
and, even if they were not so barred, they would fail because they are without factual or legal
merit.
I. BACKGROUND
A. Mr. Gewin ls Tried. Convicted. and Sentenced in this Court
On August 20, 2003, a federal grand jury indicted Mr. Gewin on one count of conspiracy
to commit securities and wire fraud, one substantive count of securities fraud, and six counts of
wire fraud, all in connection with the alleged manipulation and fraudulent trading of stock in a
company called "ZDoTrade," a Nevada corporation which had no employees and minimal assets.
See Indictment, United States v. Gewin, Criminal Action No. 06-366-01 (CKK) (D.D.C. Aug. 20,
2003), ECF No. [l]. The case involved an alleged "pump and dump" scheme, with the
Govemment arguing at trial that Mr. Gewin and his co-conspirators orchestrated a "reverse
merger" of a public shell company and ZDoTrade; secured hidden control of most of the merged
entity’s publicly tradable stock; pumped up the share price through a campaign of strategically
timed, fraudulent press releases; and sold their holdings into the artificially inflated market.
Mr. Gewin was tried before a jury in this Court in May and June of 2004, with the
undersigned presiding over the trial. As he has consistently in the proceedings before this Court,
Mr. Gewin represented himself at trial and expressly disavowed the need or desire for legal
representation.‘ The jury ultimately found Mr. Gewin guilty on one count of securities fraud; one
count of conspiracy to commit securities fraud; and two counts of wire f``raud. On April 22, 2005,
this Court sentenced Mr. Gewin to an aggregate tenn of 108 months’ imprisonment and three
years’ supervised release, ordered him to pay $l,975,786 in restitution, for which he was jointly
and severally liable with his co-conspirators, and ordered him to pay a $500,000 fine, for which
he was individually liable. See J. in a Criminal Case at 2-4, United States v. Gewin, Criminal
Action No. 06-366-01 (CKK) (D.D.C. Apr. 22, 2005), ECF No. [426]. Further, Mr. Gewin was
specifically directed to transfer all the funds in five specific accounts that he had identified in his
financial affidavit and that were found to be within his control (the "Identified Accounts"). Id.
As found by the Court during Mr. Gewin’s sentencing hearing, the combined funds in the
identified Accounts demonstrated that Mr. Gewin then had the financial ability to pay
$651,541.82 towards the total fine and restitution amounts.
B. Mr. Gewin’s Direct Appeal to the United States Court of Appeals for the
District of Columbia Circuit ls Denied
Mr. Gewin appealed his criminal conviction and sentence to the United States Court of
Appeals for the District of Columbia Circuit. In so doing, Mr. Gewin elected not to challenge the
sufficiency of the evidence against him, but instead argued that this Court erred in allowing him
to represent himself at trial, in admitting into evidence statements of his co-conspirators over
hearsay objections, and in imposing the $50(),000 fine. The United States Court of Appeals for
the District of Columbia Circuit rejected all three arguments and affirmed Mr. Gewin’s criminal
1 As the proceedings have developcd, the Court has periodically probed Mr. Gewin’s
desire for legal representation.
conviction and sentence. See United States v. Gewin, 471 F.3d 197 (D.C. Cir. 2006). With
respect to the $500,000 fine in particular, the appellate court provided as follows:
Before imposing the $500,000 fine, the district court noted that
Gewin claimed $651,541 in various accounts and stock worth some
$l .5 million. The court did acknowledge a dispute between Gewin
and a co-defendant over the stock, and, in part because of this
uncertainty, ultimately rejected the government’s request for a larger
fine. But the court also reasoned that Gewin might not have to pay
the entire $l ,975,786 in restitution, given that some injured investors
wouldn’t ever seek compensation, and that Gewin’s co-defendants
were jointly and severally liable for whatever amount was raised.
Moreover, the record suggests that Gewin was less than forthright
with the court about the state of his finances. The district court
commented that Gewin had "stonewalled" the court from obtaining
updated and accurate financial inforrnation. * * * [I]t makes good
sense to burden a defendant who has apparently concealed assets to
prove that he has no such assets and thus cannot pay the fine. But
Gewin claimed a net worth of more than $2 million, will be in his
mid-40s when released, and is a college graduate and a licensed pilot.
Thus, the record as a whole amply supports the view that Gewin was
able or likely to become able to pay the fine imposed.
ld. at 203 (internal quotation marks and citations omitted). In short, the appellate court found no
error in this Court’s imposition of the $500,000 fine or the Court’s assessment of Mr. Gewin’s
financial resources at the time of his sentencing.
C. Mr. Gewin Represents That He Has Access to Sufficient Funds to Satisfy His
Fine and Restitution Oblizations
Following the resolution of Mr. Gewin’s direct appeal of his criminal sentence and
conviction, the Government requested that a status conference be held to address Mr. Gewin’s
compliance with his fine and restitution obligations. See Mot. by the United States for a Status
Conference, United States v. Gewin, Criminal Action No. 06-3 66-01 (CKK) (D.D.C. Jan. 19,
2007), ECF No. [494]. Mr. Gewin twice responded in writing, both times asserting that a status
conference was unnecessary because he intended to satisfy his obligations in f``ull. On January 3 l ,
2007, Mr. Gewin filed a document entitled "Judicial Notice," providing that the fine and
restitution amounts "shall be honored" and that the funds would be submitted, in United States
dollars, "in approximately 90 to 120 days." Pl.’s Judicial Notice at l, United States v. Gewin,
Criminal Action No. 06-366-01 (CKK) (D.D.C. Jan. 3l, 2007), ECF No. [498]. On February 22,
2007, Mr. Gewin filed a second "J udicial Notice," again affirming that the fine and restitution
amounts “shall be honored" and that the funds would be submitted "within 90 days or so." Pl.’s
Judicial Notice at l, United States v. Gewin, Criminal Action No. ()6-366-01 (CKK) (D.D.C.
Feb. 22, 2007), ECF No. [504].
Notwithstanding the foregoing representations, on April 24, 2007, this Court held a
hearing to address Mr. Gewin’s compliance with his fine and restitution obligations. During the
course of that hearing, Mr. Gewin again represented to the Court that he then had access to funds
sufficient to satisfy both the fine and restitution amounts in full and that he intended to satisfy
both obligations. See Order at 1, United States v. Gewin, Criminal Action No. 06-366-01 (CKK)
(D.D.C. Apr. 24, 2007), ECF No. [5 1 8]. Therefore, on the same date, the Court entered an order
requiring Mr. Gewin to remit payment to the Clerk of the Court no later than June 8, 2007. Ia'. at
l-2. The Court’s order further reminded Mr. Gewin that he was prohibited from dissipating,
disbursing, or otherwise diminishing the funds in the Identified Accounts, as the Court had
already "specifically ordered [him] to transfer these funds" to the Clerk of the Court in partial
satisfaction of his fine and restitution obligations. Id. at 2.
Despite this Court’s clear and unambiguous order, Mr. Gewin failed to remit payment on
the designated date, but instead sent the Clerk of the Court a purported "Intemational Bill of
Exchange" in the amount of $2,500,000, which was later determined to be a fictitious instrument.
Accordingly, on June l4, 2007, the Government moved for an order requiring Mr. Gewin to
show cause as to why he should not be held in civil contempt for failing to comply with the
financial obligations imposed on him by this Court, see Mot. for Order to Show Cause, United
States v. Gewin, Criminal Action No. 06-366-01 (CKK) (D.D.C. June l4, 200'7), ECF No. [519],
which the Court granted on August 2, 2007, see Order to Show Cause, United States v. Gewin,
Criminal Action No. 06-366-01 (CKK) (D.D.C. Aug. 2, 2007), ECF No. [522].
On August 3, 2007, Mr. Gewin filed a written response to the Government’s motion,
arguing that this Court lacked personal and subject matter jurisdiction from the inception of the
criminal action because he "is not a signatory to the U.S. Constitution, nor a party to that social
compact" and "is not named in its [sic] federal statutes, nor that of the State of Pennsylvania."
Pl.’s Resp. to Mot. for Order to Show Cause 1111 2-3, United States v. Gewin, Criminal Action No.
06-366-01 (CKK) (D.D.C. Aug. 3, 2007). Meanwhile, with respect to his fine and restitution
obligations, Mr. Gewin argued, inter alz``a, that the definition of "money" is not limited to legal
tender and claimed that he had "discharge[d] the restitution debt/judgment[] under agreement or
necessity via Bill of Exchange." Id. 1[ l2.
D. Mr. Gewin Files a Petition for Habeas Corpus in the United States District
Court for the N0rthern District of West Virginia
On August l5, 2()07, before this Court had an opportunity to issue a ruling on whether
Mr. Gewin should be held in civil contempt for failing to satisfy the fine and restitution
obligations imposed on him by this Court as part of his criminal conviction and sentence and
unbeknownst to the Court until much later in time, Mr. Gewin filed a petition for a writ of habeas
corpus in the United States District Court for the Northem District of West Virginia pursuant to
6
28 U.S.C. § 224l. See Appl. for Habeas Corpus Pursuant to 28 U.S.C. § 224l, Gewin v. Phillips,
Civil Action No. 07-65 (REM) (JES) (N.D.W. Va. Aug. l5, 2007), ECF No. [l]. In that petition,
Mr. Gewin similarly asserted that this Court "lacked subject matter jurisdiction to hear [the
criminal] matter due to the action falling outside of the applicable statute of limitations" and
therefore "acted without authority or jurisdiction, and imposed an unlawful sentence." Br. in
Supp. of Appl. for Habeas Corpus § 2241 at 1, Gewin v. Phillz``ps, Civil Action No. 07-65 (REM)
(JES) (N.D.W. Va. Aug. l5, 2007), ECF No. [l-l].
On August 20, 2007, the West Virginia district court issued a written notice to Mr. Gewin
advising him that while 28 U.S.C. § 2241 is the proper vehicle for challenging the execution of a
sentence, 28 U.S.C. § 2255 is the appropriate vehicle for challenging the underlying conviction
or the imposition of a sentence, and asked Mr. Gewin to choose between proceeding with an
application under § 2241 and converting his application to one under § 2255. See Notification to
Pet’r of Right to Consent to Proceed Under 28 U.S.C. § 2255 or to Proceed as Filed at l-2,
Gewin v. Phz'llz``ps, Civil Action No. 07-65 (REM) (JES) (N.D.W. Va. Aug. 20, 2007), ECF No.
[4]. The district court further cautioned Mr. Gewin that § 2255 petitions are generally subject to
a one-year limitations period; that he could file only one § 2255 petition without restriction; and
that successive § 2255 petitions would need to meet certain conditions and be certified by a
United States Court of Appeals prior to being considered on the merits. Id. at 2-3.
Despite the sound advice of the West Virginia district court, Mr. Gewin affirmatively
elected to proceed under § 2241 before that court. See Election by Pet’r at l, Gewin v. Phillips,
Civil Action No. 07-65 (REM) (JES) (N.D.W. Va. Aug. 27, 2007), ECF No. [5]. On October 7,
2008, the district court denied and dismissed with prejudice Mr. Gewin’s application, reasoning
that § 2241 was the improper vehicle for attacking the validity of his conviction and sentence.
See Report & Recommendation at 1-2, Gewin v. Phillips, Civil Action No. 07-65 (REM) (JES)
(N.D.W. Va. Aug. 29, 2007), ECF No. [6]; Order, Gewin v. Phillips, Civil Action No. 07-65
(REM) (JES) (N.D.W. Va. Oct. 7, 2008), ECF No. [10].2 Mr. Gewin did not appeal the decision
and therefore his petition before the West Virginia district court is no longer at issue.
E. Mr. Gewin Seeks Relief Fr0m His Criminal Conviction and Sentence in This
Court
On August l5, 2007, the same date that he filed his § 2241 petition in the United States
District Court for the Northern District of West Virginia, Mr. Gewin filed a document with this
Court that he characterized as both a motion for relief from this Court’s judgment pursuant to
Rule 60@)) of the Federal Rules of Civil Procedure and a motion to vacate this Court’s judgment
pursuant to 28 U.S.C. § 2255.3 See Pl.’s Mot. Under Rule 60B [sic], United States v. Gewin,
Criminal Action No. 06-366-01 (CKK) (D.D.C. Aug. l5, 2007), ECF No. [526]. Mr. Gewin
argued that this Court lacked personal and subject matter jurisdiction from the inception of the
2 Based upon the Court’s review of the public docket, it appears that the copies of the
district court’s final order and judgment that were sent to Mr. Gewin were retumed as
undeliverable, but it appears that the magistrate judge’s underlying report and recommendation
was successfully delivered.
3 Obviously, the Federal Rules of Civil Procedure have no bearing on Mr. Gewin’s
criminal action-the analogous rule under the Federal Rules of Criminal Procedure would be
Rule 33, which permits a court "[u]pon the defendant’s motion . . . [to] vacate any judgment and
grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). In addressing the
merits of Mr. Gewin’s motion, the Court did not expressly indicate whether it was construing it
as a motion for a new trial under Rule 33, as a habeas petition under 28 U.S.C. § 2255, or as
both. Given this ambiguity, the Court will assume without deciding that the motion was treated
solely as a motion for a new trial; however, it observes that a contrary finding would require Mr.
Gewin to comply with the procedural requirements for successive habeas petitions in connection
with the two petitions now before the Court.
criminal action and that his securities fraud conviction under Rule 10b-5 should be overturned
because the action was not commenced within the applicable limitations period. Id.
On August 30, 2007, this Court denied Mr. Gewin’s motion for relief``. See Order, United
States v. Gewz``n, Criminal Action No. 06-366-01 (CKK) (D.D.C. Aug. 30, 2007), ECF No. [532].
First, with respect to Mr. Gewin’s personal jurisdiction argument, the Court concluded that Mr.
Gewin had waived his right to object to this Court’s personal jurisdiction over him when he
voluntarily appeared at his arraignment and entered a plea of not guilty. Ia'. at l. Second, with
respect to Mr. Gewin’s subject matter jurisdiction argument, the Court reiterated that Mr. Gewin
had been charged with the violation of a number of federal statutes and that this Court maintains
original jurisdiction over all offenses against the laws of the United States. la’. Third, with
respect to Mr. Gewin’s statute of limitations argument, the Court noted that Mr. Gewin’s
calculations were erroneously premised on the limitations period applicable to private causes of
action and concluded that Mr. Gewin was indicted well within the applicable five-year statute of
limitations applicable to criminal securities fraud violations. Id. at 2. Mr. Gewin did not appeal
the decision and therefore Mr. Gewin’s motion for relief is no longer at issue.
F. Mr. Gewin Is Held in Civil Contempt by this Court for Failure to Comply
with His Fine and Restitution Obligations
On September 5, 2007, shortly after it had resolved Mr. Gewin’s motion for relief from
his criminal conviction and sentence, this Court held a "show cause" hearing to address Mr.
Gewin’s apparent failure to comply with his fine and restitution obligations. During the course
of that hearing, the Court found that there was "clear and convincing evidence that Defendant
Gewin ha[d] not complied with two clear and unambiguous Court Orders." Order at 1, United
sm¢@s v. Gewm, criminal Action No. 06-366-01 (CKK) (D.D.C. sept 6, 2007), ECF No. [537].
9
Specifically, the Court found that Mr. Gewin failed to comply with the Court’s April 22, 2005
order directing him to pay the fine and restitution amounts, which were to be partially satisfied
through the transfer of the funds in the identified Accounts to the Clerk of the Court, and had
also failed to comply with the Court’s April 24, 2007 order, which again directed Mr. Gewin to
pay the fine and restitution amounts. Id. at l-2. The Court further found that even though Mr.
Gewin had represented that he had the financial ability to satisfy his fine and restitution
obligations in full and stated that he intended to do so, he instead purported to settle his
obligations through a fictitious instrument." Ia'. at 2.
Based on these findings, the Court held Mr. Gewin in civil contempt and ordered Mr.
Gewin’s incarceration until he complied with the Court’s orders concerning his fine and
restitution obligations. Ia'. at 2. Mr. Gewin’s criminal sentence was suspended in the interim,
and Mr. Gewin would receive no credit towards his underlying criminal sentence while he
remained incarcerated for civil contempt. Id. at 3.
G. Mr. Gewin Raises the Issue of His Ability to Pay the Fine and Restitution
Amounts for the First Time
On October 30, 2007, Mr. Gewin raised for the first time the issue of his financial ability
to pay the fine and restitution amounts in a letter to this Court. See Letter from Barry William
Gewin, United States v. Gewin, Criminal Action No. 06-366-01 (CKK) (D.D.C. Oct. 30, 2007),
ECF No. [544]. Mr. Gewin wrote:
4 At the time of the Court’s decision, Mr. Gewin had received credit towards his total
fine and restitution obligations-in the neighborhood of $l,825_reflecting de minimis payments
he had made into the Registry for the United States District Court for the District of Columbia.
Since then, Mr. Gewin has received, and will continue to receive, credit for amounts that he pays
into the Registry through the United States Bureau of Prisons Financial Responsibility Program.
10
lt appears to me that your latest order of Sept. 6, 2007 demands that
l ‘pay’ approximately $2.5 Million, the whole fine and entire
restitution, or else l sit in jail forever. Somewhere along the line you
apparently got the misimpression that l have access to $2.5 Million
of ‘money of account.’ Perhaps it was a misunderstanding from the
April 24, 2007 hearing, where l stated that l had access to the whole
amount and would send a check in by June 8“‘ accordingly. l
apologize for the lack of clarity at the time, but 1 was referring to the
UCC Contract Trust Account and the international Bill of Exchange
that I tendered, and nothing else. * * * So you formally are aware,
l have no funds, or so-called "money", in any accounts anywhere in
the world, or buried or otherwise, no gold nor silver, no tangible
assets like cars, trucks, boats, planes, homes or otherwise (other than
the minimal things on the Financial Affidavit) in my name or any 3“‘
party or entity or nominee names or otherwise. The only funds that
you would accept, that I had access to in June of 2004 and all the way
up to today, was the approximately $350K that was in the BB+T
account and the Global Bank account [i.e., two of the ldentified
Accounts]. 1 had given Ms. Fergusonm [the Power of Attomey]
sometime in or around July of 2004. She took full control of my
accounts when l was put into the DC jail in June of 2004. She has
informed me that none of these funds remain.
Id. at l-2. In his letter, Mr. Gewin proceeded to claim that at least some of the funds in the
ldentified Accounts were "spent under necessity," asserting that he expended approximately
$357,000 in legal fees and other unidentified expenses incurred during his incarceration. Id. at 2.
On December 3, 2007, the Court determined that Mr. Gewin’s contention regarding his
purported inability to meet his fine and restitution obligations was unavailing insofar it related to
the specific amount that he was found to be able to pay based on the financial records that he
provided to the Court at the time of his sentencing and that he was specifically instructed to
transfer in partial satisfaction of his obligations_namely, $651,541.82. See Order at l-2, United
States v. Gewin, Criminal Action No. 06-366-01 (CKK) (D.D.C. Dec. 3, 2007), ECF No. [547].
5 According to Mr. Gewin, Tommi Ferguson has been his common-law wife since
approximately 1990 or 1991.
11
At the same time, the Court acknowledged that its prior civil contempt order could be construed
as holding Mr. Gewin in civil contempt on the full fine and restitution amounts, which would be
an amount above and beyond that which the Court previously found Mr. Gewin to be able to pay.
The Court requested further briefing from the parties on the issue.
H. The Court Clarifies its Civil Contempt Order and Explains to Mr. Gewin the
Circumstances That Could Lead to Relief From That Order
On September 25, 2008, the Court clarified its civil contempt order, explaining that while
Mr. Gewin remained liable for the full fine and restitution amounts, he was being held in civil
contempt only for failing to pay the $651,541.82 that the Court previously found that Mr. Gewin
had the financial ability to pay. See Order, United States v. Gewin, Criminal Action No. 06-366-
01 (CKK) (D.D.C. Sept. 25, 2008), ECF No. [553]. That figure was originally derived from the
combination of the funds in the ldentified Accounts that were listed on Mr. Gewin’s affidavit and
determined to be within his control.
ln addition, the Court took the opportunity to explain at some length why Mr. Gewin’s
October 30, 2007 letter to the Court failed to justify relief from the Court’s civil contempt order,
Relying on the established principle that proceedings for civil contempt do not open to
reconsideration the legal or factual bases of the underlying order alleged to have been disobeyed,
the Court informed Mr. Gewin that he could not challenge the Court’s civil contempt order
simply by attempting to relitigate the foundation for the Court’s April 22, 2005 order finding that
he had the financial ability to pay $651,541.82 at the time of his sentencing Ia'. at 3-4.
However, the Court proceeded to explain what circumstances could potentially lead to
relief from the Court’s civil contempt order, such that would allow Mr. Gewin to resume and
serve his suspended criminal sentence. Specifically, the Court advised Mr. Gewin that, as a
12
defense to civil contempt, a party may assert a present inability to comply with the underlying
court order, observing that where compliance with the underlying court order is impossible, there
is no reason to proceed with civil contempt. Ia’. at 5.
Nonetheless, the Court explained to Mr. Gewin that it was his burden to adduce sufficient
evidence to establish his present inability to comply "clearly, plainly, and unmistakably," and
concluded that Mr. Gewin had failed to discharge that burden through his October 30, 2007 letter
to the Court. Ia’. (internal quotation marks omitted). While Mr. Gewin asserted in his letter that
he was unable to pay the fine and restitution amounts, Mr. Gewin "offer[ed] nothing other than
his own unswom statement that he is currently unable to pay the amount the Court previously
found him able to pay.” Ia'. He offered no documentary evidence, or even sworn testimony, to
establish that he in fact paid the amounts to third parties as indicated in his letter and that he did
so, as he claimed, with funds in the ldentified Accounts. Id. at 6. Furtherrnore, even crediting
the amounts set forth in Mr. Gewin’s letter, Mr. Gewin had accounted only for $357,000 of the
$651,541.82 that the Court found Mr. Gewin was able to pay at the time his sentence was
imposed. Ia'. at 7-8. Finally, Mr. Gewin’s letter failed to acknowledge that he was explicitly
instructed at the time of his sentencing not to transfer any of the funds in the ldentified Accounts
to third parties, but was instead ordered to transfer those funds directly to the Clerk of the Court.
Id. at 6. ln the final analysis, Mr. Gewin’s October 30, 2007 letter, if anything, only raised more
questions about Mr. Gewin’s financial ability to pay.
The Court concluded with the following overarching observation:
Simply put, if Defendant Gewin is now attempting to defend against
the civil contempt proceeding by claiming a current inability to pay,
he bears the burden of establishing that defense, and can only do so
by proving, through documentary evidence of the transfers he alleges
13
and swom statements by himself and the alleged transferees, that he
can no longer pay the $651,541.82 that the Court previously found
him able to pay. As his unswom October 30, 2007 letter falls far
short of that standard, the Court has no basis for considering whether
Defendant Gewin has a current ability to pay the fine and restitution
amounts he owes.
Id. at 8 (emphasis in original). Based on this conclusion, the Court continued the civil contempt
order and reiterated that Mr. Gewin’s criminal sentence would remain suspended during the
pendency of his incarceration for civil contempt. Id. at 8-9.
l. The Government Prompts Mr. Gewin to Satisfy the Fine and Restitution
Amounts or Establish That He ls No Longer Able to Pav
ln the months following this Court’s order continuing Mr. Gewin’s incarceration for civil
contempt, Mr. Gewin made no attempt to prove to the Court’s satisfaction that he was no longer
able to pay the $651,541.82 that the Court previously found him able to pay, such that might
warrant relief from the Court’s civil contempt order and permit Mr. Gewin to resume and serve
his criminal sentence. On July 13, 2009, the Govemment filed a notice with the Court, serving a
copy on Mr. Gewin, advising Mr. Gewin that he would continue to be held under civil contempt
unless and until he either pays the $651,541.82 that he was found able to pay or, altematively,
demonstrates to the Court that he is no longer able to pay. See Notice Regarding Continued Civil
Contempt Status, United States v. Gewin, Criminal Action No. 06-366-01 (CKK) (D.D.C. July
13, 2009), ECF No. [556]. On July l5, 2009, the Court issued an order directing Mr. Gewin’s
attention to the Govemment’s notice and requiring him to file a timely response with the Court
indicating the mariner in which he intended to proceed. See Order, United States v. Gewin,
Criminal Action No. 06-366-01 (CKK) (D.D.C. July l5, 2009), ECF No. [557]. To this day, Mr.
Gewin has never directly responded to the Court’s order,
14
J. Mr. Gewin F iles a Petition for Habeas Corpus in the United States District
Court for the District of New Jersg
Rather than directly responding to this Court order, on July 23, 2009, Mr. Gewin filed a
petition for a writ of habeas corpus in the United States District Court for the District of New
Jersey. See Pet. for Writ of Habeas Corpus, Gewin v. Dodrill, Civil Action No. 09-3612 (FLW)
(D.N.J. July 23, 2009), ECF No. [l]. Mr. Gewin argued that he was unlawfully sentenced,
contended that he was being held unlawfully for civil contempt, and maintained that he was
innocent of all wrongdoing. Ia'. at l-2. ln particular, Mr. Gewin articulated for the first time his
theory that the prosecutor in the underlying criminal action in this Court acted without "official
authority," thereby perpetrating a fraud on this Court and securing a conviction against Mr.
Gewin "based on trickery and fraud." Aff. to Supp. Writ of Habeas Corpus at 3-4, Gewin v.
Dodrill, Civil Action No. 09-3612 (FLW) (D.N.J. July 23, 2009), ECF No. [l-l].
On July 28, 2009, less than a week after Mr. Gewin filed his petition, the United States
District Court for the District of New Jersey construed Mr. Gewin’s petition as one arising under
28 U.S.C. § 2241 and directed the Govemment to answer within thirty days. See Order to
Answer, Gewin v. Doa'rill, Civil Action No. 09-3612 (FLW) (D.N.J. July 28, 2009), ECF No.
[2]. On August 27, 2009, the Government filed a timely answer. See Resp’t Scott Dodrill’s
Answer to Pet. for Writ of Habeas Corpus, Gewin v. Dodrill, Civil Action No. 09-3612 (FLW)
(D.N.J. Aug. 27,2009),1~:€1= No. [9].
On October 23, 2009, Mr. Gewin filed a letter with the New Jersey district court,
asserting that the Govemment’s answer was untimely, reiterating his view that the prosecutor in
the criminal action before this Court was without authority to bring criminal charges against him,
and maintaining that he had not been provided with "clear and compelling" evidence of his guilt.
15
See Letter from Barry William Gewin at l-3, Gewin v. Dodrill, Civil Action No. 09-3612 (FLW)
(D.N.J. Oct. 23, 2009), ECF No. [12]. On November 12, 2009, the Government responded with
a letter of its own, maintaining that its answer was timely and that the Bureau of Prisons
confirmed that Mr. Gewin had received a copy. See Letter from Paul J. Fishman, Esq., Gewin v.
Doa’rill, Civil Action No. 09-3612 (FLW) (D.N.J. Nov. l2, 2009), ECF No. [13]. On January 19,
201 0, Mr. Gewin sent an additional letter to the New Jersey district court, which was identical to
his October 23, 2009 letter, with the exception that Mr. Gewin had handwritten "please respond"
on its face. See Letter from Barry William Gewin, Gewin v. Dodrill, Civi1Action No. 09-3612
(FLW) (D.N.J. Jan. 19, 2010), ECF No. [14].
On February 23, 20l0, the New Jersey district court construed Mr. Gewin’s petition as
challenging both his incarceration for civil contempt as well as his underlying criminal
conviction and sentence. See Opinion at 6, Gewin v. Dodrill, Civil Action No. 09-3612 (FLW)
(D.N.J. Feb. 23, 2010), ECF No. [15]. With respect to the forrner, the district court concluded
that a petition under § 2241 was the improper vehicle for challenging the legality of Mr. Gewin’s
confinement. Id. at 6-7. With respect to the latter, the district court noted that Mr. Gewin did not
appeal this Court’s civil contempt order and was therefore precluded from challenging the
underlying validity of that order. Id. at 10. Limiting its review to the propriety of Mr. Gewin’s
continued incarceration for civil contempt, the New Jersey district court determined that Mr.
Gewin was not entitled to relief because he did not contend that he was then unable to comply
with the underlying court orders. Ia'. at 10-12. Noting that an identical petition had been filed in
this Court, the New Jersey district court declined to transfer the action to this Court for further
consideration. Id. at 12 n.5. Mr. Gewin did not appeal the decision and therefore Mr. Gewin’s
16
petition before the New Jersey district court is no longer at issue.
K. Mr. Gewin Files a Petition for a Writ of Habeas Corpus in the Criminal
Action Before This Court That ls Identical to His Petition Before the United
States District Court for the District of New Jersey
On July 30, 2009, roughly contemporaneous with the filing of his petition for a writ of
habeas corpus in the United States District Court for the District of New Jersey, Mr. Gewin filed
an identical pleading, styled as a "writ of habeas corpus," in the underlying criminal action before
this Court (the "July 30, 2009 Petition"). See Pet. for Writ of Habeas Corpus, United States v.
Gewin, Criminal Action No. 06-366-01 (CKK) (D.D.C. July 30, 2009), ECF No. [558]. As in his
New Jersey petition, Mr. Gewin appears to challenge in his July 30, 2009 Petition both his
underlying criminal conviction and sentence as well as his incarceration for civil contempt:
Petitioner has been unlawfully sentenced and held with an indefinite
monetary civil contempt of court, until an unverified malicious
contempt fine is paid. Petitioner maintains his innocence of all wrong
doings [sic] civilly and criminally brought against Petitioner.
Petitioner has not filed a petition seeking a ‘Writ of Habeas’ in this
or any other court.[‘] Petitioner is being held in violation of the United
States Constitution and laws of the United States.
Ia'. at 2. ln his petition, Mr. Gewin repeats his position, made previously at trial, that he does not
want an attorney appointed to represent him in connection with his petition. Id.
ln an accompanying affidavit, Mr. Gewin expands on the basis of his July 30, 2009
Petition, and in particular, his contention that the prosecutor in the underlying criminal action in
this Court acted without proper authority:
Upon an investigation and verified inforrnation, Petitioner believes
6 Given that Mr. Gewin had already filed a petition for a writ of habeas corpus in the
West Virginia district court, and had obtained a final ruling thereon, his representation that he
had not previously filed a petition in any other court is demonstrably false.
17
and has been made aware that the acting prosecutor perpetrated [a]
fraud on the Petitioner in acting with official authority as an Assistant
United States Prosecutor. The facts are "Raj a Chatterjee" is without
an Oath of Office on file with the Secretary of State, affirming to
protect or defend the United States Constitutional guarantee and
protections. Also, "Raja Chatterjee” is not employed or registered
with the D.C. District Court Bar or New York State Unified Court
System, to act as an official Assistant Prosecutor, for the United
States, but has and is employed as a staff attorney of Morgan Stanley
. . Therefore Raja Chatterjee intimidation [sic] of criminal and
civil prosecution against Petitioner was based on trickery and fraud.
Aff. to Support Writ of Habeas Corpus at 1, United States v. Gewin, Criminal Action No. 06-
366-01 (D.D.C. July 30, 2009), ECF No. [558-1].
On August 3, 2009, this Court issued an order observing that Mr. Gewin’s pleading was
not responsive to its July l5, 2009 order requiring Mr. Gewin to file a timely response indicating
whether he intended to seek relief from this Court’s civil contempt order either by paying the fine
and restitution amounts or, a1tematively, by attempting to demonstrate to the Court that he is no
longer able to pay. See Min. Order, United States v. Gewin, Criminal Action No. 06-3 66-01
(D.D.C. Aug. 3, 2009). Despite the unresponsiveness of Mr. Gewin’s filing, the Court directed
the Government to file a responsive pleading by September 4, 2009. Id. The Government was
subsequently afforded a one-week extension of time, and it ultimately filed a timely response on
September 11, 2009. See Resp. of the United States to Def.’s "Writ of Habeas Corpus," United
States v. Gewin, Criminal Action No. 06-366-01 (D.D.C. Sept. ll, 2009), ECF No. [562].
On November 19, 2009, this Court issued an order reiterating that Mr. Gewin’s July 30,
2009 Petition was "entirely unresponsive to the Court’s clear and unambiguous order of July l5,
2009 and [did] not include any indication whether Mr. Gewin intend[ed] to pursue either of the
two options outlined [in that order] in an effort to discharge the civil contempt finding." Order at
18
2, United States v. Gewin, Criminal Action No. 06-366-01 (D.D.C. Nov. 19, 2009) (intemal
quotation marks omitted), ECF No. [563]. Therefore, the Court found that Mr. Gewin should
continue to be held in civil contempt. Ia'. at 2. However, because the Govemment’s response did
not purport to address Mr. Gewin’s July 30, 2009 Petition as if it were an independent petition
for a writ of habeas corpus, the Court directed the Govemment to file an appropriate response by
no later than December 21, 2009. la’. at 2-3. On December 21, 2009, the Govemment filed a
timely response, this time treating Mr. Gewin’s July 30, 2009 Petition as a petition for a writ of
habeas corpus. See Resp. of the United States to Def.’s "Writ of Habeas Corpus," United States
v. Gewin, Criminal Action No. 06-366-01 (D.D.C. Dec. 21, 2009), ECF No. [564]. Mr. Gewin’s
July 30, 2009 Petition remains outstanding and is addressed in this memorandum opinion.
L. Mr. Gewin Sends a Letter to the Court Challenging the Actions of the United
States District Court for the District of New Jersey and Further Disputing
the Basis for His Continued Incarceration
Mr. Gewin’s July 30, 2009 Petition in the criminal action before this Court remained
outstanding as of April 6, 2010, when Mr. Gewin filed a letter with this Court maintaining that
he had been incarcerated "without warning or clear explanation or compelling evidence,"
complaining that he had been required to "pay an outrageous fine to unnamed victims," and
reiterating his view that the prosecutor in the underlying criminal action was without official
authority. Letter from Barry Williarn Gewin at l-2, United States v. Gewin, Criminal Action No.
06-366-01 (D.D.C. Apr. 6, 2010), ECF No. [565]. ln addition, Mr. Gewin also argued for the
first time that the United States District Court for the District of New Jersey7 was required to
7 Based on his allegations, it is clear that Mr. Gewin’s letter challenges the timeliness
with which the United States District Court for the District of New Jersey acted on his petition
before that court, and not the timeliness of this Court’s response to his J u1y 30, 2009 Petition in
19
issue a writ of habeas corpus within three days of the filing of his petition in that court. Ia’. at 1.
While Mr. Gewin’s letter is unattached to any particular petition before this Court, the Court
shall address Mr. Gewin’s additional argument in this memorandum opinion.
M. Mr. Gewin Files a Petition for Habeas Corpus with the United States Court
of M)peals for the Third Circuit. Which ls Later Transferred to This Court
On April l5, 2010, Mr. Gewin filed a petition for a writ of habeas corpus with the United
States Court of Appeals for the Third Circuit (the "April l5, 2010 Petition").g See Pet. for Great
Writ of Habeas Corpus, Gewin v. Dodrill, No. 10-2101 (3d Cir. Apr. l5, 2010), ECF No. [l]. On
April 23, 2010, in accordance with Rule 22(a) of the Federal Rules of Appellate Procedure,g the
United States Court of Appeals for the Third Circuit issued an order transferring the April l5,
2010 Petition to this Court for a final resolution. See Order at l, Gewin v. Dodrill, No. 10-2101
(3d Cir. Apr. 23, 2010), ECF No. [2]. On May 13, 2010, the petition was formally transferred to
this Court and a new civil action was opened under the caption of Gewin v. Dodrill, Civil Action
No. 10-782 (CKK) (D.D.C.).
Mr. Gewin’s April l5, 2010 Petition is essentially coterminous with his July 30, 2009
Petition, appearing to challenge both his underlying criminal conviction and sentence as well as
the underlying criminal action, even though the New Jersey district court had already denied Mr.
Gewin’s petition several weeks before he filed his letter with this Court.
8 The Court shall refer to Mr. Gewin’s pleading as the April 15 , 2010 Petition, even
though it was not actually filed in this Court until May 13, 201 0.
9 That rule provides, in relevant part, as follows:
An application for a writ of habeas corpus must be made to the
appropriate district court. lf made to a circuit judge, the application
must be transferred to the appropriate district court.
Fed. R. App. P. 22(a).
20
his incarceration for civil contempt and on the same grounds. More specifically, Mr. Gewin
again asserts that he was "unlawfully prosecuted and sentenced" and that he is "being held
illegally with an indefinite, monetary civil contempt of court, until an unverified, malicious
contempt fine is paid." Pet. for Great Writ of Habeas Corpus at 2, Gewin v. Dodrill, Civil Action
No. 10-782 (CKK) (D.D.C. May 13, 2010), ECF No. [l-l]. Mr. Gewin "maintains his innocence
of all alleged wrongdoings brought against him both civil and criminal," and reiterates and
expands upon his allegation that the prosecutor in the underlying criminal action committed a
fraud upon him and this Court:
This fraud was committed in the United States District Court for the
District of Columbia by a private staff attorney with Morgan Stanley
in New York, one of Petitioner’s competitors in the stock market
business. Morgan Stanley had a vested interest in seeing Petitioner,
and other competitors like him, imprisoned and/or banned from this
business.
Mr. Raja Chatterjee and other co-conspirators filed an invalid and
fraudulent "indictment" on August 20, 2003. Mr. Chatterjee posed
as and impersonated a federal officer, namely an Assistant United
States Attomey with the United States Department of Justice,
Criminal Division, Fraud Section, in Washington, D.C.
Ia’. Based on these allegations, Mr. Gewin "request[s] that the false ‘indictment’ and every
proceeding, document, etc., including, but not limited to, any and all orders, judgments or the
like, pertaining to [him], be immediately vacated, dismissed, reversed and thrown out, and that
an order for [his] immediate release be issued." la'. at 2-3. As he consistently has before this
Court, Mr. Gewin repeats his position that he does not want an attorney appointed to represent
him in connection with his petition. See Aff. in Supp. of Pet. for Writ of Habeas Corpus at 4-5,
Gewin v. Dodrill, Civil Action No. 10-782 (CKK) (D.D.C. May 13, 2010), ECF No. [l-l].
On May 19, 2010, a matter of days after Mr. Gewin’s April l5, 2010 Petition was
21
transferred to and filed with this Court, the Court directed the Government to file an answer by
no later than July 19, 2009. See Order, Gewin v. Dodrill, Civil Action No. 10-782 (CKK)
(D.D.C. May 19, 2010), ECF No. [4]. On July 19, 2010, the Govemment filed a timely response.
See Govemment’s Resp. to Show Cause Order, Gewin v. Dodrill, Civil Action No. 10-782
(CKK) (D.D.C. July 19, 2010), ECF No. [9]. Mr. Gewin’s April l5, 2010 Petition remains
outstanding and is addressed in this memorandum opinion.
N. Mr. Gewin Files a Petition for a Writ of Habeas Corpus in the United States
Courts of Appeals for the District of Columbia Circuit
On April l5, 2010, the same date he filed a petition with the United States Court of
Appeals for the Third Circuit, Mr. Gewin filed an identical petition directly with the United
States Court of Appeals for the District of Columbia Circuit. See Pet. for Great Writ of Habeas
Corpus, 1n re Barry Gewin, No. 10-3028 (D.C. Cir. Apr. l5, 2010), Document No. [1240861].
On June 11, 2010, the United States Court of Appeals for the District of Columbia Circuit
concluded that it was without jurisdiction to hear Mr. Gewin’s petition because an application for
a writ of habeas corpus must be made to the district court. See Order, In re Barry Gewin, No. 10-
3028 (D.C. Cir. June 11, 2010), Document No. [1249471]. Meanwhile, noting that a similar
petition was currently pending before this Court,l° the appellate court declined to transfer the
petition, dismissing it outright. Id. Therefore, Mr. Gewin’s petition filed with the United States
Court of Appeals for the District of Columbia Circuit is no longer at issue.
‘° Even though an identical petition_the April l5, 2010 Petition that was transferred to
this Court from the United States Court of Appeals for the Third Circuit-was then pending
before this Court, the reference to a "similar" petition in United States Court of Appeals for the
District of Columbia Circuit’s order appears to be a reference to the July 30, 2009 Petition,
reaffirming this Court’s conclusion that the two petitions are essentially coterrninous.
22
O. Mr. Gewin Files an Additional Copy of His July 30, 2009 Petition with this
Court
On May 19, 2010, Mr. Gewin filed an additional copy of his July 30, 2009 Petition with
this Court. See Pet. for Writ of Habeas Corpus, Gewin v. Dodrill, Civil Action No. 10-782
(CKK) (D.D.C. May 19, 2010), ECF No. [3]. The submission is identical to his July 30, 2009
Petition, with the exception of a handwritten notation at the top of the document stating, "Third
Request. Must be answered according to the U.S. Constitution." Ia'. at l. lt is not clear which of
Mr. Gewin’s various submissions to this Court and other courts constitute the two alleged prior
requests referenced, though presumably one of them is the July 30, 2009 Petition itself.
P. Mr. Gewin Files Various Documents with this Court Challenging the
Timeliness of the Response to His Petitions
On June 16, 2010, Mr. Gewin filed a letter with this Court, acknowledging that he had
received this Court’s order directing the Govemment to respond to his April l5, 2010 Petition
but nonetheless complaining that the Court was yet to "issue[] the ‘Writ Of Habeas’, which [he]
paid for and filed THREE (3) TIMES." Letter from Barry William Gewin at l, Civil Action No.
10-782 (CKK) (D.D.C. June 16, 2010), ECF No. [5]. Mr. Gewin further argued:
As you should be made aware, your ORDER is one of many
ORDERS directing unnamed persons to do something, and all
ORDERS have been ignored! Last year, Freda L. Wolfson [i.e., the
district judge assigned to Mr. Gewin’ s action before the United States
District Court for the District of New Jersey] issued an ORDER on
July 28, 2009 requiring Respondents to respond to her ORDER with
‘certified copies’, etc., and they failed to do so. Then you issued
another ORDER in November of last year ordering Respondents to
respond to the same issues, and they failed a second time to do so.
=l<=l<*
1 am asking you to grant the Writ immediately without any further
delay. Please consider once again the fact that Respondents have
23
already had TWO (2) opportunities to answer this Writ and have
failed.
Id. at l-2. Mr. Gewin then proceeded to repeat his allegation that the prosecutor in the
underlying criminal action was without official authority and perpetrated a fraud. Id.
On June 30, 2010, Mr. Gewin filed another document challenging the timeliness of the
response to his various petitions, this one styled as an affidavit directed to the Chief Judge of the
United States District Court for the District of Columbia. See Aff., Gewin v. Dodrill, Civil
Action No. 10-782 (CKK) (D.D.C. June 30, 2010), ECF No. [6].“ Therein, Mr. Gewin ascribes
various errors to the actions of both this Court and the New Jersey district court1
' With respect to his petition before the New Jersey district court, Mr. Gewin
contended that the Govemment failed to respond to his petition in the time
allotted by the New Jersey district court; argued that the New Jersey district court
should therefore have granted his petition as a matter of law; and suggested that
the New Jersey district court instead did not “rule at all." Ia'. 1111 l-2.
° With respect to his July 30, 2009 Petition before this Court, Mr. Gewin similarly
contended that the Government failed to file a response in the time allotted by the
Court; and argued that the Court should therefore have granted his July 30, 2009
Petition as a matter of law. Id. 11 3.
' With respect to the April l5, 2010 Petition filed with the United States Court of
Appeals for the Third Circuit and later transferred to this Court, Mr. Gewin
" Mr. Gewin’s original filing was not notarized, but a notarized copy was subsequently
filed with the Court. See Aff., Gewin v. Dodrill, Civil Action No. 10-782 (CKK) (D.D.C. July 6,
2010), ECF No. [7].
24
asserted that the deadline set by this Court for the Govemment to respond-July
19, 2010-was "approximately one full year after the Writ was filed, and G_O_days_
after [the] Order"; argued that a writ of habeas corpus must be answered within
three days of its filing pursuant to the United States Constitution and 22 U.S.C. §
2243;‘2 and suggested that the time periods designated by this Court "exceed[ed]
the authorized time limits imposed by law." Ia’. 1111 4-6.
On September 7, 2010, Mr. Gewin filed yet another document with this Court challenging
the timeliness of the response to his various petitions, this one styled as an "affidavit" but
unnotarized. See Aff., Gewin v. Dodrill, Civil Action No. 10-782 (CKK) (D.D.C. Sept. 7, 2010),
ECF No. [10]. Therein, Mr. Gewin acknowledged that he had received the Government’s July
19, 2010 response to his April 15 , 2010 Petition, but contended that the Govemment’s response
was "an unsigned, generic document of no commercial, judicial or lawful (or otherwise) value or
effect." Id. at l. Mr. Gewin proceeded to aver that the Govemment had failed to introduce
evidence proving that the prosecutor in the underlying criminal action was authorized to serve as
counsel for the United States. Id. Mr. Gewin concluded by characterizing his April l5, 2010
Petition as "unrebutted," and asserted that his immediate release was required. Ia’.
Q. Mr. Gewin Files What Appears to Be Another Fictitious Instrument in
Purported Satisfaction of His Fine and Restitution Obligations
On February 4, 2011, this Court issued an order scheduling a status conference on the
matter of Mr. Gewin’s continued incarceration for civil contempt. See Order, United States v.
Gewin, Criminal Action No. 06-366-01 (D.D.C. Feb. 4, 2011), ECF No. [57l]. See Order (Feb.
12 ln making this assertion, Mr. Gewin appears to confuse a petition or application for a
writ of habeas corpus with the writ itself.
25
4, 2011), Docket No. [571]. On or about March 8, 2011, Mr. Gewin sent a document to the
Court entitled, "Demand for Settlement, Discharge, Closure & Setoff," which Mr. Gewin
expressly styled as a response to the Court’s scheduling order. See Pl.’s Demand for Settlement,
Discharge, Closure & Setoff, Gewin v. D0drill, Civil Action No. 10-782 (CKK) (D.D.C. Apr. 19,
2011), ECF No. [11]. included with the document was an apparently fictitious "Money on
Account Order," made payable to "United States of America, lnc." in the sum of $4,000,000, an
amount far in excess of Mr. Gewin’s fine and restitution obligations. Id. at 3.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may
move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that
his sentence was imposed "in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
The circumstances under which such a motion will be granted, however, are limited in light of
the premium placed on the finality of judgments and the opportunities prisoners have to raise
most of their objections during trial or on direct appeal. "[T]o obtain collateral relief a prisoner
must clear a significantly higher hurdle than would exist on direct appeal." United States v.
Frady, 456 U.S. 152, 166 (1982). Nonetheless, "unless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law
with respect thereto." 28 U.S.C. § 225 5. The petitioner bears the burden of proving his claims
by a preponderance of the evidence. United States v. Thompson, 587 F. Supp. 2d 121 , 122
26
(D.D.C. 2008) (citing United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973)).
III. DISCUSSION
Two petitions for a writ of habeas corpus are pending before the Court-namely, Mr.
Gewin’s July 30, 2009 Petition and his April l5, 2010 Petition. The two petitions are essentially
coterminous in terms of the grounds for relief asserted, and given that Mr. Gewin has
supplemented the record with various letters and submissions conflating the two petitions, they
are best addressed together. The Court’s analysis proceeds in three parts. First, the Court shall
begin by explaining why it construes both petitions as arising under 28 U.S.C. § 2255, and not 28
U.S.C. § 2241. Second, the Court explain why both petitions are procedurally barred in their
entireties. Thereafter, the Court shall explain why, even assuming the petitions were not
procedurally barred, they would fail on the merits. ln the final analysis, the record conclusively
shows that Mr. Gewin is not entitled to relief, and therefore the Court shall deny both his July 30,
2009 Petition and his April l5, 2010 Petition.
A. The Court Construes Mr. Gewin’s Petitions as Arising Under 28 U.S.C. §
2255. Not 28 U.S.C. § 2241
As a threshold matter, the Court construes both Mr. Gewin’s July 30, 2009 Petition and
his April l5, 2010 Petition to arise under 28 U.S.C. § 2255 and not 28 U.S.C. § 2241. Mr.
Gewin does not specify the statute upon which intends to rely in either petition; however, he
plainly seeks to challenge his underlying criminal conviction and sentence and his continued
incarceration for civil contempt, and it is well-established that § 2255 is "the usual avenue for
federal prisoners seeking to challenge the legality of their confinement." In re Dorsainvil, 119
13 On rare occasions, a federal prisoner may be permitted to challenge his underlying
conviction or sentence under § 2241 if he can establish that a proceeding under § 2255 would be
27
F.3d 245, 249 (3d Cir. 1997). Section 2241, in contrast, is the proper vehicle for "challenges to
the manner in which a sentence is executed," Gewin v. Doa'rill, Civil Action No. 09-3612 (FLW),
2010 WL 703l69, at *2 (D.N.J. Feb. 23, 2010), and Mr. Gewin’s arguments are in no way
directed towards the execution of his sentence. Therefore, the Court shall analyze both the July
30, 2009 Petition and the April l5, 2010 Petition under the rubric of § 2255 .
Regardless, entertaining a petition by Mr. Gewin under § 2241 would be inappropriate for
at least two independent reasons. First, district courts are prohibited from entertaining successive
§ 2241 petitions where "it appears that the legality of such detention has been detenriined by a
judge or court of the United States on a prior application for a writ of habeas corpus" unless it is
first certified by the appropriate court of appeals. 28 U.S.C. § 2244(a). In this case, Mr. Gewin
has already brought an identical petition for habeas corpus under § 2241 in the district court
encompassing his place of confinement-the United States District Court for the District of New
Jersey-and that court dismissed Mr. Gewin’s petition on the merits, and Mr. Gewin has not
sought certification from the appropriate court of appeals. Second, district courts are expressly
limited to granting habeas relief under § 2241 "within their respective jurisdictions," 28 U.S.C. §
2241(a), and "for core habeas petitions challenging present physical confinement, jurisdiction
lies in only one district: the district of confinement," Rumsfeld v. Padz``lla, 542 U.S. 426, 443
inadequate or ineffective. See 28 U.S.C. § 2255(e) ("An application for a writ of habeas corpus
[on] behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section,
shall not be entertained . . . unless it also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention."). Mr. Gewin has made no attempt to show that
this case presents one of those rare occasions, and the Court finds that it does not. ln any event,
as described elsewhere, this Court is without jurisdiction to consider Mr. Gewin’s petition to the
extent it arises under § 2241.
28
(2004).1‘1 ln this case, Mr. Gewin was incarcerated at a federal detention facility located beyond
this Court’s jurisdiction at the time he filed both his petitions,15 rendering this Court without
jurisdiction to hear a petition challenging Mr. Gewin’s physical confinement under § 2241.
B. Mr. Gewin’s Petitions Are Procedurally Inf``irm
Mr. Gewin’s July 30, 2009 Petition and his April l5, 2010 Petition both appear to
challenge (a) his underlying criminal conviction and sentence and (b) his incarceration for civil
contempt. irrespective of their target, Mr. Gewin’s petitions are procedurally infirrn: all his
arguments are either time-barred or have been procedurally defaulted.
1. Mr. Gewin’s Petitions Are Time-Barred lnsofar as They Challenge
His Underlving Criminal Conviction and Sentence
In order to be timely, a petition for relief under § 2255 must be filed within a one-year
limitations period. See 28 U.S.C. § 2255(f). The statute provides as follows:
The limitation period shall run from the latest of_
(l) the date on which the judgment of conviction
becomes fina1;
(2) the date on which the impediment to making a motion
14 Viewed from a slightly different perspective, "[b]ecause a writ of habeas corpus does
not act upon the prisoner who seeks relief, but upon the person who holds him in custody, a court
may issue the writ only if it has jurisdiction over that person." Stokes v. U.S Parole C0mm ’n,
374 F.3d 1235, 1238 (D.C. Cir. 2004) (internal quotation marks and citations omitted and
notations altered).
15 Mr. Gewin is expected to be transferred to a detention facility in Virginia on a
temporary basis in anticipation of a status hearing before this Court around the time of the
issuance of this memorandum opinion. However, he was detained at a federal detention facility
in New Jersey at the time he filed both his petitions. irrespective of subsequent transfer, "habeas
jurisdiction as a general matter continues to be in the district where the prisoner was incarcerated
at the time the habeas petition was filed." Chatman-Bey v. Thornburgh, 864 F.2d 804, 806 n.l
(D.C. Cir. l988) (en banc); accord Stern v. Fed. Bureau of Prisons, 601 F. Supp. 2d 303, 306
(D.D.C. 2009).
29
created by governmental action in violation of the
Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through
the exercise of due diligence.
As the Supreme Court has observed, "[i]n most cases, the operative date from which the
limitation period is measured will be . . . the date on which the judgment of conviction becomes
final." Dodd v. United States, 545 U.S. 353, 357 (2005). ln this case, Mr. Gewin’s underlying
criminal conviction and sentence were affirmed by the United States Court of Appeals for the
District of Columbia Circuit on December 22, 2006. Because Mr. Gewin’s July 30, 2009
Petition and April l5, 2010 Petition were both filed far more than one year alier his conviction
and sentence became final, they are time-barred. See 28 U.S.C. § 2255(f)(1).
Significantly, Mr. Gewin has never suggested~let alone provided any evidence in
support of such a suggestion_that the limitations period should be determined according to one
of the other triggering events specified in 28 U.S.C. § 2255(1): he never claims that the
Govemment created any impediment that prevented him from filing his petitions in a timely
manner; his petitions do not turn on any newly recognized right; and he does not claim that any
of the purported "facts" supporting his petitions could not have been discovered with due
diligence years ago. See 28 U.S.C. § 2255(f)(2)-(4). Mr. Gewin has not claimed, for instance,
that the facts conceming the status of the prosecutor in the underlying criminal action could not
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have been discovered with due diligence at the time of trial, at which he was continuously
present, or on direct appeal. See United States v. Smith, _ F. Supp. 2d __, 2011 WL 381060, at
*2 (D.D.C. Feb. 3, 2011) (supporting facts "were all known to [petitioner] or could have been
easily discovered even at the time of sentencing and appeal."). This is particularly so given that
Mr. Gewin was expressly warned of the one-year limitations period by the West Virginia district
court as early as August 20, 2007, and yet he did not file the petitions now before the Court for
nearly another two years. See Notification to Pet’r of Right to Consent to Proceed Under 28
U.S.C. § 2255 or to Proceed as Filed at 2-3, Gewin v. Phillips, Civil Action No. 07-65 (REM)
(JES) (N.D.W. Va. Aug. 20, 2007), ECF No. [4]. Regardless, the Court finds that a "duly
diligent person in petitioner’s circumstances would have discovered" the facts purportedly
supporting his petitions, if at all, at the time of trial or shortly thereafier. I/Vims v. United States,
225 F.3d 186, 190 (2d Cir. 2000). This Court can find no reason-and Mr. Gewin has certainly
provided none-why a contrary conclusion should be reached in this case.
For the foregoing reasons, the Court concludes that Mr. Gewin’s petitions are time-barred
insofar as they seek to challenge his underlying criminal conviction and sentence.
2. Mr. Gewin Has Procedurally Defaulted Any Arguments Challenging
the Underlving Civil Contempt Order
lt is axiomatic that the writ of habeas corpus is an extraordinary remedy and "will not be
allowed to do service for an appeal." Reea' v. Farley, 512 U.S. 339, 354 (1994) (intemal
quotation marks omitted). Therefore, "[w]here a defendant has procedurally defaulted a claim by
failing to raise it on direct review, the claim may be raised in habeas only if the defendant can
993
first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent. Bousley
v. United States, 523 U.S. 6l4, 622 (1998) (intemal citations omitted). ln this case, Mr. Gewin
31
never sought to appeal this Court’s civil contempt order and he has therefore procedurally
defaulted his claims in this regard by failing to raise them on direct review. Meanwhile, Mr.
Gewin satisfies neither of the exceptions to this well-reasoned limitation on the scope of habeas
review: he has never suggested, let alone established, that "some objective [extemal] factor"
prevented him from challenging the civil contempt order on direct appeal, United States v.
Lawson, 608 F. Supp. 2d 58, 62 (D.D.C. 2009); nor has he ever articulated any basis that would
lead this Court to conclude that it somehow erred in holding him in civil contempt, such that
might support a finding of actual prejudice or innocence. lndeed, apart from passing references
to "an unverified malicious contempt fine," the arguments that appear in Mr. Gewin’s petitions
focus solely on the legality of his underlying criminal conviction and sentence. Under these
circumstances, the Court concludes that Mr. Gewin’s petitions are procedurally barred insofar as
they seek to challenge his incarceration for civil contempt.
C. Mr. Gewin’s Petitions Nevertheless Fail on the Merits
Even assuming, arguendo, that Mr. Gewin’s July 30, 2009 Petition and his April l5, 2010
Petition were not procedurally barred, the Court would nevertheless deny each petition on the
merits. The Court shall address each of the arguments in Mr. Gewin’s petitions seriatim.
First, Mr. Gewin tenders a litany of arguments with a level of generality that renders them
entirely meaningless. Specifically, he argues that he has been unlawfully sentenced; that he was
incarcerated in the absence of compelling evidence, clear explanation, or advance waming; and
that he is innocent of all wrongdoing Each of these arguments is stated only in sweeping and
conclusory terrns, within no meaningful attempt to provide an explanation as to their precise
basis, let alone to provide competent evidence in support. Such an approach is patently
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inadequate to discharge a petitioner’s burden of establishing that he may be entitled to the
extraordinary relief of a writ of habeas corpus. ln any event, each of Mr. Gewin’s generalized
claims is belied by everything in the record. Mr. Gewin was tried, convicted, and sentenced only
after a full and fair trial before his peers; he was given the opportunity to raise objections to his
conviction and sentence on appeal, but he elected not to challenge the sufficiency of the evidence
against him; and he has already secured final rulings on the merits of two separate habeas
petitions filed in other courts. Mr. Gewin’s generalized arguments simply do not entitle him the
extraordinary relief of habeas corpus.
Second, Mr. Gewin suggests, with minimal explication, that his contempt fine is
33 SL
"malicious, unverified," and "outrageous," and complains that he is being held "indefinitely"
in civil contempt pursuant to this Court’s orders. The Court has already explained to Mr. Gewin
on a number of occasions and in considerable detail exactly what he must do in order to secure
relief from this Court’s civil contempt order. See, e.g., Order, United States v. Gewin, Criminal
Action No. 06-366-01 (CKK) (D.D.C. Sept. 25, 2008), ECF No. [553]. The Court considers it
unnecessary to revisit the matter in this context, particularly in light of the fact that Mr. Gewin is
currently scheduled to appear before this Court imminently so that the Court may once again
explain to him what he must do in order to secure such relief, Suffice it to say that, to this day,
Mr. Gewin still has made no attempt to either (a) pay the $651,541.82 towards his fine and
restitution obligations that he was determined to have the financial ability to pay at the time of
his sentencing and specifically directed to transfer to the Clerk of the Court, or (b) "prov[e]
through documentary evidence of the transfers he alleges and sworn statements by himself and
the alleged transferees, that he can no longer pay the $651,541.82 that the Court previously found
33
him able to pay." Id. at 8. To the extent Mr. Gewin believes he may discharge his obligations by
periodically submitting fictitious financial instruments to this Court, he is mistaken.
Third, through a succession of filings, Mr. Gewin has complained about the timeliness of
the responses to his several petitions for habeas corpus in this Court and others. ln so doing, Mr.
Gewin consistently conflates his various petitions, and appears to be laboring under a
fundamental misunderstanding as to the difference between petitions for a writ of habeas corpus
and the writ itself. Given this state of affairs, the Court has taken pains to describe in exhaustive
detail the history behind each of Mr. Gewin’s petitions above. However, a few specific
observations are warranted here. First, despite Mr. Gewin’s repeated assertion to the contrary,
the Govemment has never failed to respond to a single one of his petitions, nor has it ever
responded in an untimely fashion. This is true of Mr. Gewin’s petition before the New Jersey
district court and, more importantly, of the only petitions that remain outstanding and pending
before this Court-namely, the July 30, 2009 Petition and the April l5, 2009 Petition. ln each
instance, the Government responded within the time period expressly designated by this Court.
Second, Mr. Gewin somewhat perplexingly suggests that the New Jersey district court never
ruled on his petition before that court; setting aside the fact that this contention is irrelevant to the
merits of the only two petitions before this Court, the contention is false-the New Jersey district
court issued a final ruling denying Mr. Gewin’s petition on February 23, 2010, weeks before Mr.
Gewin tendered his a1legation. See Opinion at 6, Gewin v. Doa’rill, Civil Action No. 09-3612
(FLW) (D.N.J. Feb. 23, 2010), ECF No. [15]. In the final analysis, the true timelines are as
follows: Mr. Gewin’s first petition before this Court-the July 30, 2009 Petition-was filed on
July 30, 2009, the Court ordered a response from the Govemment a mere four days later, and the
34
Govemment responded in the time period designated by the Court, which was slightly over a
month after the Court’s order. Mr Gewin’s second petition~the April l5, 2010 Petition-was
transferred to and filed with this Court on May 13, 2010, the Court ordered a response from the
Govemment less than a week later, and the Govemment responded within the time period
designated by the Court, which was a month afier the Court’s order. These time periods are not
unusua1, and they certainly do not entitle Mr. Gewin to the extraordinary relief of habeas corpus.
Separate and apart from his misstatements as to the procedural history behind his
petitions, Mr. Gewin appears to be laboring under a fundamental misunderstanding as to the
difference between petitions for a writ of habeas corpus and the writ itself. He repeatedly
suggests that the Govemment’s failure to respond to his petitions within three days of their filing
means that his petitions should be granted as a matter of law. However, the three-day time
limitation referenced by Mr. Gewin applies not to petitions, but to issued writs themselves. That
is, an issued writ must "be retumed within three days unless for good cause additional time, not
exceeding twenty days, is allowed." 28 U.S.C. § 2243. ln other words, the provision merely
directs the petitioner’s custodian to release the petitioner within a certain time period only after
the district court has determined that the petitioner’s release is appropriate. Meanwhile, the
district court is in no way precluded from affording the Govemment additional time to respond in
writing to a petitioner’s underlying petition, particularly where, as herc, there is good cause for
affording the Govemment sufficient time to craft a meaningful response.
Finally, Mr. Gewin argues most forcefully that the lead prosecutor in the underlying
criminal action-a Trial Attomey assigned to the Fraud Section of the Criminal Division of the
United States Department of Justice-somehow perpetrated a fraud upon him and this Court.
35
Truth be told, the precise contours of Mr. Gewin’s argument in this regard are not easy to define,
but his argument appears to be four-fold. Affording Mr. Gewin’s petitions and subsequent
submissions a generous construction, Mr. Gewin grounds both of his petitions in allegations that
the prosecutor was a Trial Attomey with the United States Department of Justice and not an
Assistant United States Attomey assigned to the United States Attomey’s Office for the District
of Columbia; the prosecutor did not have an "Oath of Office" filed with the Secretary of State at
the time of Mr. Gewin’s criminal trial; the prosecutor was not admitted to the Bar of this Court at
the time of Mr. Gewin’s criminal trial; and the prosecutor was a staff attorney with a major
financial institution at the time of Mr. Gewin’s criminal trial. With the exception of the
undisputed fact that the lead prosecutor was a Trial Attorney with the United States Department
of Justice at the time of Mr. Gewin’s criminal trial, which is irrelevant to the validity of Mr.
Gewin’s criminal conviction and sentence, all of these contentions fail at the outset for the simple
reason that they rest entirely on Mr. Gewin’s speculation.
That is, Mr. Gewin has introduced no evidence_none-suggesting that the prosecutor
did not have an "Oath of Office" filed with the Security of State, was not admitted to the Bar of
this Court, or was a staff attomey with a major financial institution at the time of Mr. Gewin’s
criminal trial. While Mr. Gewin has submitted an unauthenticated and partially redacted letter
from the Attorney Registration Unit of the New York State Unified Court System, which
identifies the prosecutor’s registered business address at the time of the letter as the offices of a
major financial institution in New York City, the letter is dated March 12, 2009_nearly five
years after Mr. Gewin’s jury trial conc1uded. See Aff. to Support Writ of Habeas Corpus at 1,
United States v. Gewin, Criminal Action No. 06-366-01 (D.D.C. July 30, 2009), ECF No. [558-
36
l]. Similarly, while Mr. Gewin has submitted an unauthenticated and partially redacted letter
from the District of Columbia Bar purporting to identify certain individuals with active and
inactive bar memberships at the time of the letter, that letter is also dated March 12, 2009 and
therefore in no way evidences that the prosecutor was not admitted to the District of Columbia
Bar16 at the time of Mr. Gewin’s criminal trial. Id. Moreover, that letter only purports to provide
the status of bar memberships for individuals "[o]ut of a list of names [Mr. Gewin] provided,"
and there is no indication that the prosecutor was among the individuals on the list. Id. In short,
Mr. Gewin has failed to provide this Court with any evidence that would even remotely suggest
that his arguments may turn out to be supported and entitle him to relief,
Furtherrnore, Mr. Gewin’s arguments concerning the prosecutor lack legal merit. The
F ederal Rules of Criminal Procedure define the tenn "attomey for the government" broadly to
97 £‘
include "the Attomey General or an authorized assistant, a United States attomey or an
authorized assistant," or "any other attomey authorized by law to conduct proceedings under
these rules as a prosecutor," Fed. R. Crim. P. 1(b)(1), a definition that is more than sufficiently
broad to encompass the prosecutor in Mr. Gewin’s criminal action. Meanwhile, attorneys that
are employed or retained by the United States, such as the prosecutor in Mr. Gewin’s criminal
action, simply are not required to be members of the Bar of this Court in order to appear before,
and practice in, this Court. See LCrR 44.1(d)-(e). Regardless, even assuming, arguendo, that
there was some defect in the appointment of the Govemment’s counsel in the underlying
criminal action, that would not divest this Court of jurisdiction to hear the criminal action nor
16 ln relying on this letter, Mr. Gewin appears to confuse the Bar of this Court with the
District of Columbia Bar.
37
necessarily render the indictment against the defendant somehow invalid. See United States v.
Suescun, 237 F.3d 1284, 1287 (11111 Cir. 2001); United States v. Baldwin, 541 F. Supp. 2d 1184,
1214 (D.N.M. 2008).
For the foregoing reasons, even assuming that they were not procedurally barred, Mr.
Gewin’s July 30, 2009 Petition and his April l5, 2010 Petition nonetheless fail on the merits.
IV. CONCLUSION
The Court has considered the remaining arguments tendered by the parties and has
concluded that they are either without merit or not necessary for resolution of the instant
petitions. For the foregoing reasons, the Court concludes that the record conclusively establishes
that Mr. Gewin is not entitled to relief on either of his petitions. Accordingly, the Court shall
deny both his July 30, 2009 Petition and his April l5, 2010 Petition. See Pet. for Writ of Habeas
Corpus, United States v. Gewin, Criminal Action No. 06-366-01 (CKK) (D.D.C. July 30, 2009),
ECF No. [558]; Pet. for Great Writ of Habeas Corpus at 2, Gewin v. Doa’rill, Civil Action No.
10-782 (CKK) (D.D.C. May 13, 2010), ECF No. [l-l]. The Court will also dismiss the civil
action in which Mr. Gewin’s April l5, 2010 Petition was filed. Two appropriate orders
accompany this memorandum opinion.
Dated: April 25, 2011
L) AYU¢"
COLLEEN KOLLAR-KOTE LY
United States District Judge
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