UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

DON ARTHUR WEBSTER, 

Petitioner, 

v. 

WARDEN FEATHER, 

FCI SHERIDAN, 

Respondent. 

CLARKE, Magistrate Judge. 

3:15-cv-00953-CL 

FINDINGS AND 

RECOMMENDATION 

Petitioner is a federal inmate housed at FCI Sheridan, 

serving a 360 month sentence imposed by the United States 

District Court for the District of Alaska. 

Petitioner filed a petition pursuant to the 28 U.S.C. § 

2241 "savings clause" provision seeking to vacate his sentence 

related to 12 counts of his conviction for sex trafficking of 

children by force, fraud and coercion in violation of 18 

1 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 1 of 11
U.S.C. § 1591 (a) (1) and (b) (2), and for sex trafficking by 

force, fraud, and coercion in violation of 18 U.S.C. § 1591 

( a) ( 1 ) and ( b) ( 1 ) . [18 U.S.C. § 1519 is part of the 

Trafficking Victims' Protection Act - "TVPA"] . 

Petitioner argues that he should not have been convicted 

of the sex trafficking charges because the §1591 statute is an 

"over reach of federal authority" and is not intended to reach 

"purely local criminal conduct." Petition (#1) at p. 8-9. 

The District of Alaska denied this argument on appeal and in 

a § 2255 motion. Petitioner argues that the Supreme Court 

decision in Bond v. United States, 134 S.Ct. 2077 (2014), 

created a "new interpretive rule" that "modified the elements" 

of 18 U.S.C. § 1591 allowing him to re-submit his "foreign 

nexus" argument for successive judicial review. Id. p. 6. 

Respondent submits that the Bond decision is not 

applicable to this case and that petitioner's petition should 

be dismissed as an improper successive § 2255 petition that 

fails to quality for the § 2241 savings clause provision. 

The lurid facts resulting in petitioner's conviction are 

set forth in the record and need not be repeated here. As 

noted above, petitioner was convicted of multiple counts of 

sex trafficking. 1 All of the counts alleged conduct "in and 

1Petitioner was also convicted of 14 drug-related counts but 

does not contest those convictions in this proceeding. 

2 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 2 of 11
affecting interstate and foreign commerce." In charging the 

jury with respect to the sex trafficking counts, the court 

repeatedly and expressly informed the jury that the charges 

required proof that the defendant's conduct was "in or 

affecting interstate or foreign commerce." 

On appeal, petitioner did not challenge the requirement 

that the prosecution prove that his conduct involved either 

interstate or foreign commerce, and the Ninth Circuit affirmed 

petitioner's convictions. 

Petitioner filed a 28 U.S.C. § 2255 motion to vacate his 

sentence in the District of Alaska alleging four grounds for 

relief. Each of the four claims were a variation of the 

argument that the TVPA only be applied to crimes that involve 

a "foreign nexus" and that there is no such nexus for sex 

trafficking crimes. Exhibit 5, p. 4-5. 

The sentencing court rejected petitioner's argument, 

holding that the TVPA requires proof of either a foreign 

commerce or interstate commerce nexus, but not both, and that 

petitioner had not challenged the evidence of interstate 

commerce nexus. Exhibit 5, p. 8. 

Petitioner's § 2255 motion also alluded to an "actual 

innocence" defense, but the court found that he "made no 

factual showing to support an actual innocence claim." Id., p. 

7. 

3 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 3 of 11
The Ninth Circuit denied petitioner's multiple 

requests for a certificate of appealability. In 

petitioner's motion for reconsideration of order denying 

a certificate of appealability, petitioner made a 

"foreign nexus" argument based on Bond v. United States, 

133 S. Ct. 978 (2013), similar to the argument he makes 

in this proceeding. Specifically, petitioner argued that 

"foreign commerce is not a factor as, the alleged 

of fender and each person that engaged in a sex act were 

all national U.S. citizens residing in Alaska, and each 

act of the covered offense occurred in Alaska." Motion 

to Reconsider, United States v. Webster, Appeal No. 13-

36123 (9th Cir. Ap. 28, 2014). The Ninth Circuit denied 

petitioner's motion for reconsideration and the United 

States Supreme Court denied review. 

Petitioner filed the petition in this case seeking 

successive review of his foreign nexus argument pursuant 

to the "savings clause" of § 2241. 

A federal inmate may challenge his sentence under 

two main statutes, 28 U.S.C. § 2241 and § 2255. A§ 2241 

petition generally challenges the execution of a sentence 

such as the "manner, location, or condition" of 

confinement. Hernandez v. Campbell, 204 F.3d 861, 864 

( 9th Cir . 2 O 0 O ) • Motions under § 2255 are the proper 

4 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 4 of 11
way to challenge the imposition of a sentence. 

Specifically, pursuant to 28 U.S.C. § 2255, a federal 

inmate "may move the court which imposed the sentence to 

vacate, set aside or correct the sentence." Generally, 

all "motions to contest the legality of a sentence must 

be filed under § 2255." Hernandez, 204 F. 3d at 864. The 

exception to this rules arises when § 2255 is considered 

"inadequate or ineffective to test the legality of his 

detention." 28 U.S.C. § 2255 (e); Harrison v. Ollison, 

5 1 9 F . 3 d 9 5 2 , 9 5 6 ( 9th Cir . 2 o O 8 ) . This exception is 

known as the "escape hatch" or the "savings clause" 

provision under § 2255, and allows inmates to challenge 

the imposition of a sentence under§ 2241. Hernandez, 204 

F.3d at 864 n. 2. 

The Ninth Circuit has held that a petitioner may not 

file a §2255 challenge to the legality of his sentence 

"disguised" as a § 2241 actual innocence claim. 

The reviewing court must first conduct an analysis 

of whether a § 2241 escape hatch petition has been 

properly filed by determining if the petitioner has 

established: 1) that he is "actually innocent" of his 

convicted crimes; and 2) that he has not had an 

"unobstructed procedural shot" at presenting his claims 

to the sentencing court. Muth v. Fondren, 676 F.3d 815, 

5 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 5 of 11
819 (9th Cir. 2012) citing Stephens v. Herrera, 464 F.3d 

8 9 5 I 8 9 8 ( 9th cir • 2 0 0 6 ) • 

In the Ninth Circuit, "actual innocence" in the 

context of the § 2255 escape hatch provision, requires a 

petitioner to show that "in the light of all the 

evidence, it is more likely than not that no reasonable 

juror would have convicted him." Muth, 676 F.3d at 819, 

822 citing Stephens, 464 F.3d at 898. 

Petitioner argues that he is actually innocent 

because the TVPA sex trafficking statute is an over reach 

of federal authority, and that the statute was improperly 

applied to him because his sex trafficking conduct was 

"purely local" and did not involve any foreign persons. 

Petition (#1) p. 8-9, 20, 22. 

In the Ninth Circuit, "actual innocence" means 

"factual innocence, not mere legal insufficiency.' Muth, 

676 F.3d p. 819, citing Bously v. United States, 523 

U.S. 614, 623 (1998); Marrero v. Ives, 682 F.3d 1190, 

119 3 ( 9th Cir . 2 0 12 ) . 

Petitioner's claim that his "purely local" child sex 

trafficking involving only United States citizens was 

improperly charged because §1591 should only apply to sex 

trafficking at an international level is a claim of legal 

insufficiency. Petitioner has not alleged any facts or 

6 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 6 of 11
established any evidence that he is factually innocent 

of sex trafficking. 

Petitioner's reliance on Bond is misplaced. In that 

case, the Supreme Court interpreted an ambiguous chemical 

weapons statute implementing an international treaty, and 

determined the statute could not be applied to the purely 

local criminal conduct of a scorned wife who stole toxic 

chemicals and caused a minor thumb burn to her husband's 

lover. Unlike the chemical weapons statute in Bond that 

was implemented pursuant to the Constitution's Necessary 

and Proper clause, Congress enacted the clear language of 

the TVPA pursuant to their power to regulate under the 

Commerce Clause. The TVPA clearly requires the criminal 

conduct to be "in or affecting interstate commerce." 18 

U.S.C § 1591(a). The Bond case is factually and legally 

distinguishable from the case at bar and the Bond 

decision is irrelevant to the application of § 1591 and 

the TVPA pursuant to the commerce clause. 

The Ninth Circuit recently considered the Bond 

decision in a TVPA case and found "the TVPA clearly 

demonstrates Congress' intent to enact a criminal statute 

addressing sex trafficking at all levels of activity." 

United States v. Walls, 784 F.3d 543, 547 (9th Cir. 

2015). The Court went on to emphasize that the human 

7 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 7 of 11
trafficking, particularly of women and children is a 

"form of modern day slavery" and that "consistent with 

the "outer limits of the commerce power defined in 

[Gonzales v. Raich, 545 U.S. 1, (2005)] we hold that any 

individual instance of conduct regulated by the TVPA need 

only have a de minimis effect on interstate commerce." 

Id. at 548. 

Other courts have held that § 1591 is a valid 

exercise of Congress' power under the commerce clause. 

See, United States v. Evans, 476 F. 3d 1176, 1177-78 ( 11 

Cir. 2007); United States v. Campbell, 770 F.3d 556, 574 

(7th Cir. 2014) i United States v. Phea, 755 F. 3d 255, 263 

(5th Cir. 2014) . 

In this case, petitioner does not contest his local 

sex trafficking conduct, Petition (#1) p. 16, or the 

sentencing court's finding that the government properly 

"showed that [petitioner's] sex trafficking affected 

interstate commerce by the use of cell phones, the use of 

hotels that host out-of-state travelers, and the use of 

condoms produced outside the state. . . . [And] that showing 

was sufficient to satisfy the jurisdictional element of 

the TVPA violation." Exhibit 5 p. 11. 

Thus, petitioner's argument does not constitute a 

claim of actual innocence. Rather it is purely a claim 

8 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 8 of 11
of legal insufficiency attacking the TVPA statute. 

Moreover petitioner's challenge to the statute is 

contradicted by substantial legal precedent. 

Assuming arguendo, that petitioner could assert a 

cognizable claim of actual innocence, he has failed to 

establish the second prong of the escape hatch analysis 

because he has failed to show that his previous §2255 

motions were obstructed, inadequate or ineffective. 

Petitioner has failed to allege any facts that would 

tend to demonstrate that his previous §2255 motions did 

not constitute a "clear procedural shot" at presenting 

his claim or that the sentencing court inadequately 

addressed his claims. Petitioner's claim in this case is 

based upon the argument that the Bond case "created a new 

interpretive rule" that "modified the elements of 18 

U.S. C. § 1591." As explained above, the Bond decision 

did no such thing and has no relevance to this case. 

Petitioner has already presented multiple variations 

of his "foreign nexus" argument to the sentencing court 

in a denied § 2255 motion, and the Ninth Circuit which 

denied petitioner's request for a certificate of 

appealability. Petitioner is attempting to re-litigate 

the legality of his sex trafficking convictions through 

§2241 escape hatch jurisdiction using a new twist on the 

9 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 9 of 11
same "foreign nexus" argument that was decided adversely 

to him in his previous §2255 petition. 

However, petitioner has not shown that he is 

actually innocent or that his previous § 2255 proceedings 

were obstructed, inadequate, or ineffective. Therefor 

petitioner has failed to establish either requirement for 

§2241 escape hatch jurisdiction and his Petition (#1) 

should be denied and this action should be dismissed for 

lack of jurisdiction. 

The Clerk of the court should be directed to enter 

a judgment dismissing this proceeding. 

This recommendation is not an order that is 

immediately appealable to the Ninth Circuit Court of 

Appeals. Any notice of appeal pursuant to Rule 4(a) (1), 

Federal Rules of Appellate Procedure, should not be filed 

until entry of the district court's judgment or 

appealable order. The parties shall have fourteen (14) 

days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

fourteen (14) days within which to file a response to the 

objections. Failure to timely file objections to any 

factual determinations of the Magistrate Judge will be 

considered a waiver of a party's right to de novo 

10 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 10 of 11
consideration of the factual issues and will constitute 

a waiver of a party's right to appellate review of the 

findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Certificate of Appealability 

Should pe ti ti oner appeal, a certificate of 

appealabili ty should be denied as petitioner has not made 

a substantial showing of the denial of a constitutional 

right. See, 28 U.S.C. § 2253(c)(2). 

DATED this 

~// //~ 

Mark D. Clarke 

United States Magistrate Judge 

11 - FINDINGS AND RECOMMENDATION 

Case 3:15-cv-00953-CL Document 24 Filed 08/16/16 Page 11 of 11