                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2006

Bauer v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2071




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Recommended Citation
"Bauer v. Atty Gen USA" (2006). 2006 Decisions. Paper 321.
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APS-348                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                  NO. 06-2071
                               ________________

                      FREDERICK W. BAUER, EX PARTE

                                       v.

                U.S. ATTORNEY GENERAL AGENTS, ET AL.
                      U.S. DISTRICT COURT(S) ET AL.
                      U.S. COURTS OF APPEAL ET AL.
             U.S. CONGRESS ET AL.; U.S. SOLICITOR GENERAL

                                    Frederick W. Bauer,
                                              Appellant
                   ____________________________________

                 On Appeal From the United States District Court
                    For the Eastern District of Pennsylvania
                           (D.C. Civ. No. 06-cv-00794)
                 District Judge: Honorable Clifford Scott Green
                  ____________________________________

                      Submitted For Possible Dismissal or
           Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6

          BEFORE: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES

                            (Filed: October 16, 2006)

                           _______________________

                                  OPINION
                           _______________________

PER CURIAM
       Frederick W. Bauer, a federal prisoner, appeals the order of the United States

District Court for the Eastern District of Pennsylvania dismissing without prejudice for

lack of jurisdiction his habeas petition brought pursuant to 28 U.S.C. § 2241.

       Bauer was convicted in the United States District Court for the Western District of

Wisconsin on assorted drug charges and was sentenced to thirty years of imprisonment.

The Seventh Circuit Court of Appeals affirmed and the U.S. Supreme Court denied

certiorari in 1992. United States v. Bauer, 956 F.2d 693 (7th Cir.), cert. denied, 506 U.S.

1029 (1992). Bauer does not assert, and the record does not indicate that he ever filed a

§ 2255 motion to vacate his conviction on the drug charges.1 From 1992 through 2002,

he filed numerous motions for extraordinary relief in the Supreme Court, all of which

were denied. He also filed many civil rights suits and other actions in districts across the

nation, all of which were transferred to the District of Minnesota, in which Bauer was

confined, and disposed of there. In 2001 and 2002, Bauer filed two § 2241 petitions, one

in the Eastern District of Virginia, and the other in the Northern District of California,

raising claims challenging his conviction and sentence and complaining of lack of access

to his legal materials. Both § 2241 petitions were transferred to the District in Minnesota

and both petitions were dismissed. See Bauer v. Ervin, Civ. A. No. 01-0917 (D. Minn.

Nov. 11, 2002) (holding that it lacked jurisdiction to review Bauer’s § 2241 petition



       1
       According to Bauer, he only pursued § 2255 relief for a separate criminal tax
conviction. See Habeas Petition, Ex. “A,” at # # 5 & 19; United States v. Bauer,
No. 88-CR-0055-C-01.

                                              2
which challenged his criminal conviction); Bauer v. Ashcroft, Civ. A. No. 02-4068 (D.

Minn. Fed. 19, 2003) (same).

       In 2006, Bauer filed a § 2241 petition, which he amended twice, in the Eastern

District of Pennsylvania. Yet again, he challenges his drug conviction on essentially the

same grounds that he has articulated in prior § 2241 petitions. Bauer alleges that the

Department of Justice, the Bureau of Prisons, and the FBI orchestrated a fundamentally

unfair trial against him on his drug charges by knowingly using an informant’s false

testimony against him and by making false representations to the trial court about Bauer’s

financial assets in order to defeat his motions to proceed in forma pauperis and for

appointment of counsel, thereby forcing Bauer to proceed to trial pro se. He seeks release

from imprisonment.

       The District Court summarily dismissed the § 2241 petition. The District Court

found that Bauer was sentenced in the Western District of Wisconsin and that he was

incarcerated in a federal correctional facility in the District of Minnesota and thus,

regardless whether the habeas petition was characterized as a petition pursuant to 28

U.S.C. § 2241 or as a motion to vacate pursuant to § 2255, the District Court lacked

jurisdiction over either matter. Without re-characterizing the petition, the District Court

dismissed it without prejudice to Bauer’s refiling it in another district court. Bauer timely

appealed.




                                              3
       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.2 For essentially the

same reasons set forth by the District Court in its Order entered March 7, 2006, we will

summarily affirm. The District Court properly dismissed the petition without prejudice to

Bauer’s filing it in the appropriate court. Instead of filing a § 2255 motion to vacate,

Bauer has filed at least two § 2241 petitions challenging his drug conviction in courts that

lack jurisdiction over the matter. Bauer is an experienced litigator. If he seeks immediate

release from prison because the underlying drug conviction is unlawful, he must file a

§ 2255 motion in the District where he was sentenced. 28 U.S.C. § 2255; Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002) (holding that a § 2255 motion filed in the

sentencing court is the presumptive means for a federal prisoner to challenge to his

sentence).

       Because no substantial question is presented by this appeal, the District Court’s

judgment will be affirmed. See Third Circuit LAR 27.4 and I.O.P. 10.6. Appellant’s

motions to consolidate, for extraordinary remedy, and for summary judgment are denied.




       2
        The order dismissing Bauer’s petition without prejudice to his refiling it in
another court is final and appealable because the order ended the district court
proceedings once and for all in the United States District Court for the Eastern District of
Pennsylvania and no amendment of the petition can cure the defect in jurisdiction. See
Borelli v. City of Reading, 532 F. 2d 950, 951-52 (3d Cir. 1976) (per curiam).

                                              4
