OPINION
JEROME B. SIMANDLE, District Judge.
I. INTRODUCTION
Petitioner Tarik Price, a federal prisoner confined at FCI Fairton, New Jersey, has filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Docket Entry 4]. Petitioner asserts he is actually innocent of his conviction under 18 U.S.C. § 924(c) for aiding and abetting the use of a firearm during a crime of violence in light of the Supreme Court's decision in Rosemond v. United States, 572 U.S. 65 (2014). As relief, Petitioner requests that his § 924(c) conviction be vacated.
For the reasons expressed below, this Court will deny the petition.
II. BACKGROUND
In February 1992, Petitioner and co-conspirators robbed a Brinks armored car in front of a SEPTA office near 10th and Filbert Streets in Philadelphia, Pennsylvania. [Docket Entry 4-1 at 3]. For his role, Petitioner was convicted of conspiracy to interfere with interstate commerce by robbery, 18 U.S.C. § 1951; interfering with, aiding and abetting the interference with interstate commerce by robbery, 18 U.S.C. § 1951; and the use and carrying, and aiding and abetting the use and carrying, of a firearm during a crime of violence, 18 U.S.C. §§ 924(c)(1) and (2) after a jury trial in the United States District Court for the Eastern District of Pennsylvania. [Docket Entry 4 at 1; United States v. Tarik Price, 98-cr-00182 (E.D. Pa. Jan. 5, 1999)]. He was sentenced to a 77-month term on the § 1951 charges with a consecutive 240-month term on the § 924(c) charge. [Docket Entry 6 at 7]. The Third Circuit denied his appeal, and the Supreme Court denied a writ of certiorari. [Id. at 10].
Petitioner filed a motion to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255 in the Eastern District of Pennsylvania on September 7, 2001. Price v. United States of America, No. 01-4606 (E.D. Pa. withdrawn Apr. 3, 2002). He filed another § 2255 motion on July 5, 2002 challenging the validity of his § 924(c) conviction. [Docket Entry 6 at 10]. The trial court denied the motion, and the Third Circuit denied a certificate of appealability on September 12, 2003. [Id.] See also Price v. United States, No. 03-1291 (3d Cir. Sept. 12, 2003].
Petitioner filed this habeas corpus petition on July 6, 2015.1 [Docket Entry 1]. The Court administratively terminated it as Petitioner had not paid the filing fee or submitted an in forma pauperis application. [Docket Entry 2]. The Court reopened the case after Petitioner paid the filing fee. [Docket Entry 3]. Petitioner submitted an amended petition on November 10, 2015. [Docket Entry 4]. The Court ordered Respondent to answer. [Docket Entry 5]. Warden Kirby submitted his answer and two supplemental exhibits. [Docket Entries 6, 7, 8]. Petitioner submitted his traverse. [Docket Entry 9].
The matter is ripe for disposition without oral argument. Fed. R. Civ. P. 78(b).
III. STANDARD OF REVIEW
Petitioner brings this petition as a pro se litigant. The Court has an obligation to liberally construe pro se pleadings and to hold them to less stringent standards than more formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Higgs v. Attorney Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), as amended (Sept. 19, 2011) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney Gen., 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970).
Section 2241 "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). A challenge to the validity of a federal conviction or sentence must be brought under 28 U.S.C. § 2255. See Jackman v. Shartle, 535 F. App'x 87, 88 (3d Cir. 2013) (per curiam) (citing Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002)). "[Section] 2255 expressly prohibits a district court from considering a challenge to a prisoner's federal sentence under § 2241 unless the remedy under § 2255 is `inadequate or ineffective to test the legality of his detention.'" Snyder v. Dix, 588 F. App'x 205, 206 (3d Cir. 2015) (quoting 28 U.S.C. § 2255(e)); see also In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). "This exception is narrow and applies in only rare circumstances." Lewis v. Warden Lewisburg USP, 741 F. App'x 54, 55 (3d Cir. 2018) (citing Bruce v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017)).
IV. ANALYSIS
Petitioner invokes the savings clause to challenge his § 924(c) conviction, arguing he is actually innocent of the offense after the Supreme Court's Rosemond decision. In Rosemond, the Supreme Court held that a defendant must have "advance knowledge" of a firearm's involvement in a crime before he may be convicted of aiding and abetting a § 924(c) violation.2 "When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense." 572 U.S. 65, 78 (2014). Petitioner argues that the United States failed to prove at trial that he had advance knowledge that his co-conspirator, known only as Ty, would use a firearm during the robbery.
Petitioner argues § 2255 is ineffective and inadequate to bring his Rosemond claim because he has already filed a § 2255 motion and does not meet the standard for a second or successive motion under § 2255(h). [Docket Entry 4-1 at 7-8]. However, "[s]ection 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255." Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam) (citing Dorsainvil, 119 F.3d at 251). "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Id. at 538 (citation omitted). To date, the Third Circuit has only applied the savings clause in the rare circumstances "where an intervening change in the law decriminalized the conduct for which the petitioner had been convicted." Lewis, 741 F. App'x at 55 (citing Dorsainvil, 119 F.3d at 251-52). Petitioner asserts Rosemond is such a change in the law.
The Third Circuit has not addressed whether Rosemond claims may be filed as § 2241 petitions. See Tawalebah v. Warden Fort DIX FCI, 614 F. App'x 46, 48 (3d Cir. 2015) (per curiam) ("We have not yet addressed whether a claim based on Rosemond may be brought via a § 2241 petition pursuant to the exception we recognized in Dorsainvil, and we need not do so here because the record does not support Tawalebah's claim of innocence."). See also McCrea v. Ortiz, No. 17-4501, 2018 WL 1634395, at *3 (D.N.J. Apr. 5, 2018) (citing cases). It is therefore unclear whether this Court has jurisdiction over the petition under § 2241. However even if the Court did have jurisdiction, Petitioner's claim would fail because there is enough evidence to convict Petitioner under an alternative theory of vicarious liability.
As previously noted, Rosemond's standard requires a defendant to have advance knowledge that an accomplice will be carrying a firearm before he may be convicted of aiding and abetting a § 924(c) violation. On the other hand, the theory of liability set forth in Pinkerton v. United States allows defendants to be convicted for the acts of their co-conspirators that were "done in furtherance of the conspiracy" and that could have been "reasonably foreseen as a necessary or natural consequence" of the conspiracy. 328 U.S. 640, 647-48 (1946). The Third Circuit has held that "[b]oth Pinkerton and aiding and abetting theories support convictions under § 924(c)." United States v. Whitted, 734 F. App'x 90, 93 (3d Cir. 2018).
At Petitioner's trial, the court instructed the jury:
A conspiracy is often referred to as a partnership in crime. Thus, as in other types of partnerships, when people enter into a conspiracy to accomplish an unlawful end, each and every member becomes an agent for the other conspirators in carrying out the conspiracy.
Accordingly, the reasonably foreseeable acts, declarations and statements, and omissions of any member of the conspiracy, in furtherance of the common purpose of the conspiracy, are deemed, under the law, to be the acts of all the members, and all of the members are responsible for such acts, declarations, statements and omissions.
If you find, beyond a reasonable doubt, that a defendant whose guilt you are considering was a member of the conspiracy charged in the Indictment, then any acts done or statements made in furtherance of the conspiracy by persons also found by you to have been members of the conspiracy may be considered against that defendant. This is so even if such acts were done and statement were made in the defendant[`]s absence and without his knowledge.
[Docket Entry 7-2 at 21:25 to 22:21]. The excerpts from Petitioner's trial provided to the Court indicate there was sufficient evidence to convict him under a Pinkerton theory of liability.3 The day before the robbery, the conspirators met at Jacques Davis' house and "discussed that we was going to get together that next morning to go to a couple locations to see if we could set up a, you know, a robbery, you know." [Docket Entry 7-1 at 12:1-4]. The next morning, one of the co-conspirators told the group that an armored car would be arriving at 10th and Filbert Streets "so [they] rushed to get down." [Id. at 12:12-15]. Davis drove a van containing Petitioner, Hassan East, and Ty to the location to scope it out. [Id. at 14:20-23; 16:15-18]. When they arrived at the location, Petitioner and Ty exited the van and waited for the armored car guard to exit the SEPTA station. [Id. at 17:17-20]. Davis testified that when the guard exited the station, Ty "put the gun to the guard, removed his bag, which he gave it to Tarik Price, commanded the guard to go back into the station, and they ran down the street." [Id. at 17:21-25]. East gave a similar version in his trial testimony. [Docket Entry 8-1]. He testified that the group had agreed to "get some money" from an armored car, [id. at 8:21; 9:14-15], and that Petitioner and Ty had "put the gun to the guy, the guard" before getting the bag of money and running off, [id. at 10:19 to 11:14]. Petitioner now argues he fled the area when Ty pulled the firearm. [Docket Entry 9 at 5]. The testimony of Davis and East, viewed in the light most favorable to the government, indicates that Petitioner and Ty fled together after robbing the guard. This tends to show that the presence of a firearm was not a surprise to Petitioner and that he was in agreement with Ty's actions.
Construing the evidence in the light most favorable to the prosecution, there was enough evidence that Petitioner agreed to participate in a robbery of an armored car and that it was reasonably foreseeable that a firearm would have been used in such a robbery. Therefore, even if the evidence against Petitioner was insufficient to show advance knowledge of the firearm under Rosemond, an issue on which this Court expresses no opinion, it was sufficient to convict Petitioner under the Pinkerton theory of liability. See United States v. Casiano, 113 F.3d 420, 427 (3d Cir. 1997) ("For purposes of the matter of issue here, it makes no difference whether the government charged that [defendant] aided and abetted [co-conspirators] or charged that he conspired with them because the same principle of attribution applies to a § 924(c)(1) conviction against a co-conspirator if the co-conspirator's use of the firearm was reasonably foreseeable."). See also United States v. Hare, 820 F.3d 93, 105 (4th Cir. 2016) (ruling that even if district court had erroneously instructed jury on aiding-and-abetting theory under Rosemond, the error did not affect defendants' substantial rights because the verdicts could be "sustained under the Pinkerton theory of liability").
V. CONCLUSION
For the reasons stated above, the petition is denied. An accompanying Order will be entered.
