MALACHY E. MANNION, District Judge.
Petitioner, Thomas Garcia, an inmate confined in the Canaan United States Penitentiary ("USP-Canaan"), Waymart, Pennsylvania, filed this petition for writ of habeas corpus pursuant to
On September 22, 2010, Garcia was indicted in the United States District Court for the Northern District of Texas on various drug distribution charges.
On March 10, 2011, Garcia plead guilty to one count of distribution and possession with intent to distribute five grams or more of methamphetamine in violation of
In a separate "Factual Resume," which was signed by Garcia and made part of the criminal record, Garcia acknowledged that the elements of the crime of "distribution and possession with intent to distribute five grams or more of methamphetamine" consisted of: (1) him knowingly or intentionally distributing or possessing a controlled substance, (2) which was methamphetamine; (3) that he possessed the drug with the intent to distribute it; and (4) that the quantity of the drug was at least five grams of "actual methamphetamine."
On July 1, 2011, Garcia was sentenced, inter alia, to 150 months of imprisonment.
On July 11, 2011, Garcia filed an appeal to the United States Court of Appeals for the Fifth Circuit.
On September 17, 2012, the Fifth Circuit dismissed Garcia's appeal for Petitioner's failure to present a nonfrivolous issue for appellate review.
On April 19, 2013, Garcia filed a Motion to Vacate under 28 U.S.C. § 2255.
On May 20, 2013, the Government filed a response to § 2255 motion, detailing its lack of merit both factually and under the law.
By Order dated August 2, 2013, the sentencing court found the following:
On October 23, 2017, Garcia filed the instant petition for writ of habeas corpus pursuant to
Challenges to the legality of federal convictions or sentences that are allegedly in violation of the Constitution may generally be brought only in the district of sentencing pursuant to
Further, such claims may not be raised in a
It is initially noted that "the Supreme Court has not made
Courts have also recognized that "the rule articulated in
Petitioner is clearly challenging the validity of his guilty plea and sentence entered in the Northern District of Texas. He must do so by following the requirements of
Garcia's instant claim is not based upon a contention that his conduct is no longer criminal as a result of some change in the law. Nor has Petitioner shown that he was unable to present his claims via a
Clearly, Petitioner's pending claim does not fall within the narrow
Based upon Petitioner's failure to present this Court with any authority to support a determination that any federal court has held that a
Based on the foregoing, the petition (Doc. 1) for a writ of habeas corpus pursuant to
LISA GODBEY WOOD, Chief Judge.
Petitioner filed this action pursuant to 28 U.S.C. § 2241 seeking to attack the validity of his sentence imposed by the United States District Court for the Middle District of Florida after his conviction for distribution of heroin. Dkt. No. 1. Respondent filed a Motion to Dismiss arguing that Petitioner's action was procedurally barred, as he had previously filed an unsuccessful petition pursuant to 28 U.S.C. § 2255 in the Middle District of Florida and had twice unsuccessfully applied to the United States Court of Appeals for the Eleventh Circuit to file a second or successive Section 2255 petition. Dkt. No. 9.
The Magistrate Judge issued a Report recommending that Respondent's Motion to Dismiss be granted. Dkt. No. 12. The Report and Recommendation concluded that Petitioner could not use Section 2241 to attack his sentence because he could not satisfy Section 2255's savings clause. Id. The Magistrate Judge based this determination, among other reasons, on the fact that one of the authorities relied upon by Petitioner, Burrage v. United States, 134 S.Ct. 881, 888 (2014), had not been made retroactive by the Supreme Court. Id. at pp. 6-7. The Magistrate Judge pointed out that the Eleventh Circuit had informed Petitioner that Burrage did not announce a new rule of constitutional law and did not apply retroactively when rejecting his application to file a second or successive Section 2255 petition. Id. at pp. 2-3 (citing Dkt. No. 9-9). After a de novo review of the entire record, including Petitioner's Objections (dkt. no. 14), the Court adopted the Report and Recommendation and granted Respondent's Motion to Dismiss. Dkt. No. 15.
After unsuccessfully moving for reconsideration of the Court's Order of dismissal, Petitioner filed a Notice of Appeal on March 13, 2015. Dkt. No. 19. Petitioner then filed his Motion for Leave to Appeal in Forma Pauperis on April 6, 2015. Dkt. No. 22. On May 5, 2015, the Court denied this Motion and denied Petitioner a certificate of appealability. Dkt. No. 25. The Court found that Petitioner's appeal was without arguable merit in either law or fact and that he failed to make a showing of a denial of a constitutional right. Id. It is this ruling that Petitioner now asks the Court to reconsider. Dkt. No. 26.
Pursuant to Federal Rule of Civil Procedure 59(e) ("Rule 59(e)"), a party may seek to alter or amend a judgment in a civil case within twenty-eight days after the entry of the judgment.
Courts do not revisit orders routinely, and reconsideration is an "extraordinary remedy, to be employed sparingly." Smith ex rel. Smith v. Augusta-Ruchmond Ctv., No. CV 110-126, 2012 WL 1355575, at *1 (S.D.Ga. Apr. 18, 2012) (quoting Williams v. Cruise Ships Catering & Serv. Int'l, N.V., 320 F.Supp.2d 1347, 1358 (S.D.Fla.2004)). To warrant reconsideration, a movant must "set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Cover v. WalMart Stores, Inc., 148 F.R.D. 294, 294, 295 (M.D.Fla.1993) (quoting All Haw. Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645 (D.Haw.1987), rev'd in part on other grounds, 855 F.2d 860 (9th Cir.1988)). "A Rule 59(e) motion cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1344 (11th Cir.2010) (alterations omitted) (quoting Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763 (11th Cir.2005)). A reconsideration motion "is not an opportunity for the moving party to instruct the court on how the court `could have done it better' the first time." Jersawitz v. People TV, 71 F.Supp.2d 1330, 1344 (N.D.Ga.1999) (alterations omitted) (quoting Preserve Endangered Areas of Cobb's History v. U.S. Army Corps of Enq'rs, 916 F.Supp. 1557, 1560 (N.D.Ga.1995)). The Court's interest in finality is strong, and "[a] busy district court need not allow itself to be imposed upon by the presentation of theories seriatim." Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir.1990) (quoting Union Planters Nat'l Leasing v. Woods, 687 F.2d 117, 121 (5th Cir.1982)).
In the instant Motion, Petitioner argues that the Court should reconsider its denial of his Motion for Leave to Appeal in Forma Pauperis and the denial of a certificate of appealability because of concessions recently made by the Government in Ragland v. United States, 784 F.3d 1213, 1214 (8th Cir.2015). Dkt. No. 26. Specifically, Petitioner points out that in Ragland, the Government conceded that Burrage applies retroactively. Id.
Regardless of the concessions made by the Government in an entirely separate case, the Supreme Court has not made Burrage retroactive. The Eleventh Circuit has already advised Petitioner of the same and has directly foreclosed him from making the same arguments that he now seeks to raise on appeal. See Dkt. No. 9-9. Indeed, the Eleventh Circuit has twice rejected Petitioner's efforts to attack his sentence. Consequently, Petitioner has not shown an intervening change in controlling law or that reconsideration is necessary to correct clear error or prevent manifest injustice. Therefore, there is no reason for the Court to exercise the "extraordinary remedy" of reconsidering its decision that Petitioner's appeal is not taken in good faith and does not raise issues worthy of a certificate of appealability.
Bernard Gibson, Sr., Lewisburg, PA, pro se.
Kate Mershimer, U.S. Attorney's Office, Harrisburg, PA, G. Thiel, U.S. Attorney's Office, Scranton, PA, for Respondent.
A. RICHARD CAPUTO, United States District Judge
Respondent seeks to dismiss the Petition asserting Mr. Gibson cannot challenge his federal sentence via a § 2241 petition and that his recourse would be to seek permission from the United States Court of Appeals for the Fourth Circuit to file a second or successive motion under 28 U.S.C. § 2255. (Doc. 9.) Mr. Gibson has filed a Reply (Doc. 10) arguing his Petition falls within the savings clause of In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997) because § 2255 is not available to him as the Supreme Court has not made Burrage retroactive to cases on collateral appeal.
On February 17, 2015, Mr. Gibson sought leave to supplement his Petition. (Doc. 12.) He argued that because there are "no allegations of [drug] quantities appeared (sic) in the indictment which charged conspiracy to distribute heroin and cocaine, the government failed to establish the requisite mens rea to convict him under 21 U.S.C. § 841 and § 846 in light of McFadden v. United States, ___ U.S. ____, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015).
A jury convicted Mr. Gibson of conspiracy to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846. The court imposed a mandatory life sentence. See Gibson, Crim. No. PJM 94-0454 (D. Md.). The Fourth Circuit Court of Appeals affirmed his sentence and conviction. United States v. Gibson, 187 F.3d 631 (4th Cir. 1999). The Supreme Court granted certiorari, vacated the judgment and remanded the case to the Fourth Circuit Court of Appeals for further consideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Gibson v. United, 531 U.S. 801, 121 S.Ct. 31, 148 L.Ed.2d 3 (2000).
On remand, the Fourth Circuit Court of Appeals affirmed Mr. Gibson's conviction, but vacated his life sentence and remanded the matter to the trial court with instructions to sentence Mr. Gibson to a term of imprisonment not to exceed the thirty-year statutory maximum provided in 21 U.S.C. § 841(b)(1)(c). United States v. Gibson, 18 F. App'x 85, 87 (4th Cir. 2001). Prior to resentencing, the Supreme Court issued its decision in United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 1786, 152 L.Ed.2d 860 (2002), which held that it is not error for a district court to refrain from submitting drug quantity to the jury where the evidence of drug quantity is overwhelming and essentially uncontroverted. The sentencing court then reimposed Mr. Gibson's life sentence. Mr. Gibson appealed.
The Fourth Circuit Court of Appeals affirmed on appeal, finding the "district court properly declined to follow" its mandate "in light of the Supreme Court's intervening decision in Cotton.'" United States v. Blue, 85 F. App'x. 905, 906 (4th Cir. 2004). The Fourth Circuit Court of Appeals held that "although [the] drug quantity was not charged in the indictment or submitted to the jury, the imposition of life sentences did not affect the fairness, integrity, or public reputation of [the] judicial proceedings because the evidence of drug quantity in these cases was overwhelmingly and essentially uncontroverted." Id. The Supreme Court subsequently denied Mr. Gibson's petition for certiorari. Gibson v. United States, 541 U.S. 1081, 124 S.Ct. 2436, 158 L.Ed.2d 998 (2004).
United States v. Gibson, Crim. No. PJM-94-0454, 2014 WL 1599560 (D. Md. Apr. 17, 2014).
On April 20, 2012, Mr. Gibson, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, asserting he was being held under a void judgment. See Gibson v. Bledsoe, No. 3:CV-12-0747, 2013 WL 1497427 (M.D. Pa. Apr. 10, 2013). By Memorandum and Order of April 10, 2013, this court dismissed the petition as a successive § 2255 petition even though he insisted he was not attacking the legality of his conviction or sentence, but rather the Bureau of Prisons' execution of his sentence. (Id.) On November 2, 2015, the Third Circuit Court of Appeals dismissed Mr. Gibson's appeal pursuant to Fed. R. App. 42(b). Gibson v. Warden Lewisburg USP, No. 15-3495 (3d Cir. Nov. 2, 2015) (unpublished slip op.).
United States v. Gibson, Crim. No. PJM-94-0454, 2014 WL 1599560 (D. Md. Apr. 17, 2014).
On January 22, 2014, Mr. Gibson filed a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60 which raised claims similar to his previous § 2255 motions. Citing Alleyne v. United States, ___ U.S. ____, 133 S.Ct. 420, 184 L.Ed.2d 252 (2012), Mr. Gibson argued that the trial court improperly increased his mandatory or maximum sentence. (Id.) The sentencing court dismissed the motion as a successive § 2255 motion. (Id.)
Mr. Gibson filed his present § 2241 petition based on Burrage v. United States, ___ U.S. ____, 134 S.Ct. 881. 187 L.Ed.2d 715 (2014) on April 29, 2014. He argues § 2255 relief is "unavailable" to him as Burrage was decided after he filed his direct review and § 2255 efforts. (Doc. 1, ECF pp. 9-10.)
On January 22, 2015, Mr. Gibson filed a Motion Pursuant to a (sic) Unripe Claim in light of Burrage v. United States, ___ U.S. ____, 134 S.Ct. 881. 187 L.Ed.2d 715 (2014) before the sentencing court. After the government filed a response to the petition, but prior to the court resolving the motion, Mr. Gibson withdrew it. See United States v. Gibson, Civ. Action No. Crim. No. PJM 94-0454 (D. Md.) (Docs. 1360 and 1368-70). On October 26, 2015, the sentencing court granted Mr. Gibson's motion to withdraw his motion premised on Burrage, supra.
Under highly exceptional circumstances, the "safety valve" or "savings clause" found in 28 U.S.C. § 2255(e) will permit a prisoner to challenge the validity of his conviction in a habeas corpus proceeding under § 2241, but only where the remedy afforded by § 2255(a) "is inadequate or ineffective" to test the legality of his detention. 28 U.S.C. § 2255(e); Abed v. Bledsoe, 473 F. App'x 106, 107-108 (3d Cir. 2012); Dorsainvil, 119 F.3d at 249-51. For a § 2241 petition to be appropriate, the inadequacy or ineffectiveness of a § 2255 motion must be "a limitation of scope or procedure [that] would prevent a § 2255 proceeding from affording [the petitioner] a full hearing and adjudication of his wrongful detention claim." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002)). "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Cradle 290 F.3d at 538-39. A § 2255 motion is not "inadequate or ineffective" merely because the prisoner's time to file a § 2255 motion has passed; he did not file a § 2255 motion; he did file such a motion and was denied relief; or he cannot otherwise meet the stringent gatekeeping requirements of § 2255(h) to file a second or successive § 2255 motion. Troiano v. Warden Allenwood USP, 614 F. App'x 49, 51 (3d Cir. 2015).
The Third Circuit Court of Appeals has only applied this "safety valve" in the rare situation where a prisoner has had no prior opportunity to challenge his conviction for actions deemed to be non-criminal by an intervening change in law. Okereke, 307 F.3d at 120 (3d Cir. 2002) (citing Dorsainvil, 119 F.3d at 251). A § 2255 motion is inadequate "when a petitioner asserts a claim of `actual innocence' on the theory that `he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision' ... but is otherwise barred from challenging the legality of the conviction under § 2255." United States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013) (quoting Dorsainvil, 119 F.3d at 252). The savings clause of § 2255, however, is confined to instances of actual innocence of the underlying offense of conviction, not innocence of a sentencing factor. "Section 2241 is not available for intervening changes in the sentencing law" as such alterations would not render the crime for which the prisoner was convicted non-criminal. United States v. Kenney, 391 F. App'x 169, 172 (3d Cir. 2010) (citing Okereke, 307 F.3d at 120-121).
Finally, where a petitioner improperly challenges a federal conviction or sentence under § 2241, the petition may be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
Although Mr. Gibson properly notes that Burrage was decided after he filed his § 2255 motion, this fact does not render his § 2255 remedy inadequate or ineffective. Having pursued § 2255 relief already, any further motions in the district of conviction would be viewed as "second or successive" § 2255 motions, which could not be entertained by the trial court without the circuit court's prior authorization. See 28 U.S.C. §§ 2244(b)(3), 2255(h).
Moreover, Mr. Gibson's challenge to his sentence enhancement under Burrage is not cognizable under § 2241. Mr. Gibson argues he may proceed under § 2241 as he cannot satisfy the gatekeeping provisions of § 2255 because the Supreme Court did not make Burrage retroactive to cases on collateral review. (Doc. 1, ECF p. 10.) He argues his life sentence is invalid because the drug quantity at issue used to enhance his sentence was determined by the sentencing court and not the jury. First, Mr. Gibson's inability to satisfy § 2255's gatekeeping requirements does not make § 2255 unconstitutionally inadequate in his case. Cradle, 290 F.3d at 538-39. Additionally, the holding in Dorsainvil does not open the § 2241 portal for Mr. Gibson. Dorsainvil "allows relief under § 2241 when a subsequent statutory interpretation renders a petitioner's conduct no longer criminal." Mikell v. Recktenwald, 545 F. App'x 82, 84 (3d Cir. 2013) (citing Dorsainvil, 119 F. 3d at 251-52.) Here, Mr. Gibson's sentencing claim is not the type of claim that a federal prisoner may bring by way of a § 2241 habeas petition. Assuming Burrage is even applicable to Mr. Gibson, it is one of a line of cases similar to Alleyne v. United States, ___ U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that a factor which increases the minimum or maximum possible sentence must be submitted to a jury and found beyond a reasonable doubt. Mr. Gibson is arguing that he was improperly given a sentencing enhancement. His argument is insufficient to fall within the Dorsainvil exception because it presents argument that he is factually innocent of a sentencing enhancement as opposed to being factually innocent of the crime for which he was convicted (conspiracy to distribute and possess with intent to distribute heroin and cocaine). See United States v. Brown, 456 F. App'x 79, 81 (3d Cir. 2012) (per curiam) ("We have held that § 2255's `safety valve' applies only in rare circumstances, such as when an intervening change in the statute under which the petitioner was convicted renders the petitioner's conduct non-criminal.").
Based on the foregoing, the Petition (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C. § 2241 will be dismissed for lack of jurisdiction.
Whenever a civil action is filed in a court that lacks jurisdiction, "the court shall, if it is in the interests of justice, transfer such action ... to any other such court in which the action ...could have been brought at the time it was filed." 28 U.S.C. § 1631. In this case, the court does not find it in the interests of justice to transfer this habeas petition to the Fourth Circuit as a request to file a second or successive 28 U.S.C. § 2255 motion. Nonetheless, the court's dismissal is without prejudice to Mr. Gibson's ability to take any action he deems appropriate under 28 U.S.C. § 2244 and 28 U.S.C. § 2255 to preserve and present his issues in a second or successive motion to vacate, set aside, or correct his sentence.
An appropriate Order follows.
Kurt Harrington, Pine Knot, KY, pro se.
DAVID L. BUNNING, District Judge.
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Harrington's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir.2003). At this stage, the Court accepts the petitioner's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
On December 12, 2008, in Iowa City, Iowa, Harrington and five others were charged in a thirteen count indictment for various drug trafficking crimes, including for conspiracy to engage in drug trafficking in heroin and cocaine resulting in death. The prosecution arose from the October 5, 2008, drug overdose and death of Joseph Van Hoe, and the narcotics were eventually traced back to Harrington and his co-defendants. United States v. Harrington, No. 3:08-CR-74-JAJ, TJS-4 (S.D.Iowa 2008).
On July 27, 2009, the government filed a notice pursuant to 21 U.S.C. § 841(b)(1)(A), (B)-©, indicating that because Harrington had a prior 2002 felony drug conviction for the manufacture and delivery of a controlled substance in Cook County, Illinois, he was subject to enhanced penalties, up to and including life imprisonment. Shortly thereafter, Harrington pled guilty to Counts 10 and 11 for the sale and distribution of heroin and crack cocaine in violation of 21 U.S.C. § 841(a)(1), leaving five counts remaining for trial. (Doc. # 161, 197; see also Doc. # 291, 299 therein)
Following a five-day trial, on August 28, 2009, a jury found Harrington guilty of all remaining counts, including conspiracy to distribute heroin and crack cocaine resulting in death in violation of 21 U.S.C. §§ 841(b)(1)(A), ©, 846; distribution of heroin resulting in death in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)©, 2; distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)©; possession with intent to distribute heroin and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)©, 2; and possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a) (1), (b)(1)©, 2. In response to special interrogatories, the jury specifically found that Harrington was responsible for the distribution of 50 or more grams of crack cocaine, and that the government had proved beyond a reasonable doubt that Harrington's distribution of heroin was a "contributing factor" in Van Hoe's death. (Doc. # 211, pp. 2-3 therein)
On November 4, 2011, Harrington filed a timely motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Harrington contended that his trial counsel was ineffective for several reasons, and separately claimed that the trial court incorrectly "instructed the jury that essentially to prove that Movant caused the death of the victim by distribution of heroin the government only need show that the heroin was a `contributing' factor." (Doc. # 1-1, pp. 9, 16, 30) The trial court denied Harrington's § 2255 motion on December 17, 2012. In doing so, the trial court rejected Harrington's argument that the jury instructions regarding the § 841(b)(1)© enhancement should have required the jury to find that his activities were more than just a contributing cause of Van Hoe's death. The trial court noted that its jury instruction adhered to controlling Eighth Circuit precedent at the time. (Doc. # 1-1, pp. 56-57 (citing United States v. McIntosh, 236 F.3d 968, 972-73 (8th Cir.2001) ("Congress intended § 841(b)(1)(A)'s enhancement to apply without regard to the principles of proximate cause or the foreseeability of death or serious bodily injury."))). On May 17, 2013, the Eighth Circuit denied his request for a certificate of appealability. Harrington v. United States, No. 4:11-CV-526-JAJ (S.D.Iowa 2011). There is no record that Harrington sought en banc review from the Eighth Circuit or filed a petition for a writ of certiorari with the Supreme Court.
On January 27, 2014, the Supreme Court held that for purposes of § 841(b)(1)(A)'s sentencing enhancement provision, death or serious bodily injury only "results from" the drug trafficking when the use of the controlled substance does not merely "contribute to"—but instead is the "but-for cause of—the victim's death or injury. Burrage v. United States, ___ U.S. ____, 134 S.Ct. 881, 891 (2014) ("The language Congress enacted requires death to `result from' use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed."). The case was on review from the Eighth Circuit and, like Harrington, the petitioner's claim that § 841(b)(1)(A) requires more than a showing of contribution to the victim's death had failed under the Eighth Circuit's controlling decision in McIntosh. Id. at 886.
In his petition, Harrington reiterates his contention that his sentence was improperly enhanced because under Burrage, the jury should have been instructed that it must find that his drug trafficking activities were a "proximate cause" of Van Hoe's death before § 841(b)(1)(A)'s enhancement could be applied. (Doc. # 1, pp. 6-10) Harrington also claims that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because he failed to request a jury instruction requiring the jury to find that his drug trafficking activities were a proximate cause of Vanhoe's death to apply the § 841(b)(1)© enhancement. (Doc. # 1, pp. 11-17)
Having reviewed Harrington's claims, the Court concludes that he may not pursue them in a habeas corpus petition filed pursuant to 28 U.S.C. § 2241. A petition filed under 28 U.S.C. § 2241 is reserved for challenges to actions taken by prison officials that affect the manner in which the prisoner's sentence is being carried out, such as computing sentence credits or determining parole eligibility. Terrell v. United States, 564 F.3d 442, 447 (6th Cir.2009). To challenge the legality of a federal conviction or sentence, a prisoner must file a motion for post-conviction relief under 28 U.S.C. § 2255 in the court that convicted and sentenced him. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.1998). The prisoner may not use a habeas corpus petition pursuant to 28 U.S.C. § 2241 for this purpose, as it does not constitute an additional or alternative remedy to the one available under § 2255. Hernandez v. Lamanna, 16 F. App'x 317, 320 (6th Cir.2001).
Under highly exceptional circumstances, the "savings clause" found in 28 U.S.C. § 2255(e) will permit a prisoner to challenge the validity of his conviction in a habeas corpus proceeding under § 2241, but only where the remedy afforded by § 2255(a) "is inadequate or ineffective" to test the legality of his detention. Truss v. Davis, 115 F. App'x 772, 773-74 (6th Cir.2004). This standard is not satisfied merely because the prisoner's time to file a § 2255 motion has passed; he did not file a § 2255 motion; or he did file such a motion and was denied relief. Copeland v. Hemingway, 36 F. App'x 793, 795 (6th Cir.2002); Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir.2002) (§ 2241 available "only when a structural problem in § 2255 forecloses even one round of effective collateral review ...").
Neither of Harrington's claims fit within the narrow scope of § 2255(e). There is no doubt that Harrington's claim that his trial counsel was constitutionally ineffective under Strickland is one of ordinary trial error which he could have and must have been pursued on direct appeal or in an initial motion under § 2255. Cf. Mallard v. United States, 82 F. App'x 151, 153 (6th Cir.2003); Fuller v. United States, No. 14-CV-714-DRH, 2014 WL 3543703, at *3-4 (S.D.Ill. July 16, 2014). Relief is therefore unavailable under § 2241.
Harrington's claim that the trial court should have instructed the jury to test his conduct under the more demanding "but-for" causation test required by Burrage likewise may not be asserted under § 2241. The Sixth Circuit has indicated that, at a minimum, a new interpretation of a statute by the Supreme Court must be retroactively applicable to cases on collateral review to present the sort of "actual innocence" claim which may be pursued under § 2241. Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir.2012). Harrington's claim does rest upon a matter of statutory interpretation, rather than constitutional protections, and is based upon a Supreme Court decision post-dating his conviction, direct appeal, and initial collateral attack proceedings.
However, the Supreme Court has not expressly held that its holding in Burrage is retroactively applicable to cases on collateral review. In fact, following the Burrage decision, several recent cases have noted that Burrage decision has never been held to be retroactively applicable to such cases. See Herrera v. Warden, FCC-Coleman-USP-1, No. 13-14862, 2015 WL 77404, at *2 (11th Cir. Jan. 7, 2015); Alvarez v. Hastings, No. CV214-070, 2014 WL 4385703, at *4 (S.D.Ga. Sept. 4, 2014) (citing Eleventh Circuit's decision denying petitioner's application for leave to file second or successive 2255 motion based on Burrage, implicit in which is the conclusion that Burrage is not retroactively applicable); De La Cruz v. Quintana, No. 14-28-KKC, 2014 WL 1883707, at *6 (E.D.Ky. May 1, 2014) (unable to find any authority making Burrage retroactively applicable); Taylor v. Cross, No. 14-CV-304, 2014 WL 1256371, at *3 (S.D.Ill. Mar. 26, 2014) (Burrage has not been found to apply retroactively); In re: Carlos Alvarez, No. 14-10661-D (11th Cir. Mar. 6, 2014) (denying application for leave to file a second or successive § 2255 motion based on Burrage because the Supreme Court "did not expressly hold that Burrage is retroactive[ly applicable to cases] on collateral review.").
Accordingly,
1. Harrington's petition for a writ of habeas corpus (Doc. # 1) is
2. The Court will enter a judgment contemporaneously with this order.
3. This matter is
Adrian Cornelius Branham, White Deer, PA, pro se.
Hon. John E. Jones III, District Judge
Preliminary review of the petition has been undertaken, and, for the reasons set forth below, the petition will be dismissed for lack of jurisdiction.
The following background is set forth in a Report and Recommendation issued in the Southern District of Georgia addressing Branham's Petition to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255:
Branham v. United States, Nos. CV 109-167, CR 107-001, 2010 WL 6659823, at *1 (S.D. Georgia, Oct. 8, 2000) (document citations and footnote omitted). Branham then filed a timely Petition to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, alleging a multitude of grounds of relief. Id. at *2. The district court adopted the report and recommendation and denied the petition. April 22, 2011, Branham v. United States, No. CV-1090167, 2011 WL 1541937 (S.D. Ga. April 22, 2011).
He filed the instant petition on March 31, 2016, seeking release from custody. (Id. at 10).
Challenges to the legality of federal convictions or sentences that are allegedly in violation of the Constitution may generally be brought only in the district of sentencing pursuant to 28 U.S.C. § 2255. Okereke v. United States, 307 F.3d 117 (3d Cir. 2002) (citing Davis v. United States, 417 U.S. 333, 342 (1974)); see In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). Once relief is sought via section 2255, an individual is prohibited from filing a second or subsequent 2255 petition unless the request for relief is based on "newly discovered evidence" or a "new rule of constitutional law." 28 U.S.C. § 2255(h); 28 U.S.C. 2244(3)(A).
Review of a petition filed pursuant to 28 U.S.C. § 2241 is limited to circumstances where the remedy by motion under § 2255 would be inadequate or ineffective to test the legality of detention. See 28 U.S.C. § 2255(e); see Okereke, 307 F. 3d at 120; see Dorsainvil, 119 F.3d at 251-52. Section 2255 may be inadequate or ineffective when a federal prisoner is in an unusual position of having no earlier opportunity to challenge his conviction or where he "is being detained for conduct that has subsequently been rendered noncriminal by an intervening Supreme Court decision." Dorsainvil, 119 F.3d at 251-52. Conversely, "[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, 290 F.3d 536, 539 (3d Cir. 2002) (citations omitted); see also United States v. Brooks, 230 F.3d 643, 647 (3d Cir. 2000); Dorsainvil, 119 F.3d at 251. "If a prisoner attempts to challenge his conviction or sentence under 28 U.S.C. § 2241, the habeas petition must be dismissed for lack of jurisdiction." Id., citing Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971) ("Section 2255 has made the sentencing court the exclusive forum for challenge to the validity of a conviction and sentence.") See also United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999) (observing that "federal courts have long recognized that they have an obligation to look behind the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework").
The Rosemond court held that in order to convict someone of a § 924(c) offense under an aiding and abetting theory, the government must prove "the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission." Id. at 1243. Although there is no controlling authority directly addressing whether a Rosemond claim can be brought in a habeas petition via § 2255's savings clause, Supreme Court holdings made after a conviction has become final may not be used as the basis for a collateral challenge to that conviction unless the rule has retroactive effect. See, e.g., Schriro v. Summerlin, 542 U.S. 348 (2004). Nowhere in Rosemond did the Court indicate that it intended its holding to be applied retroactively, and the rule set forth in Rosemond does not appear to meet the qualifications for retroactive application initially set forth in Teague v. Lane, 489 U.S. 288 (1989). Further, federal courts faced with similar challenges have universally concluded that Rosemond does not apply retroactively. See, e.g., United States v. Newman, 755 F.3d 543, 546-47 (7th Cir. 2014) (discussing Rosemond in context of direct appeal from conspiracy conviction); United States v. Davis, 750 F.3d 1186, 1192-93 (10th Cir. 2014) (suggesting prospective application only: "After Rosemond, a jury instruction on aiding and abetting § 924(c) should address the defendant's advance knowledge of the gun."); Rodriguez v. Thomas, 1:14-CV-1121, 2015 WL 179057, *5 (M.D. Pa. January 14, 2015); Taniguchi v. Butler, 14-CV-120, 2014 WL 5063748 (E.D. Ky. 2014, Oct. 8, 2014); Rodriguez-Pena v. Werlich, 14-CV-994, 2014 WL 4273631, *2 (W.D. La. 2014 Aug. 19, 2014) Martinez v. United States, 3:14-CV-1359-L, 2014 WL 3361748, *2 (N.D. Tex. July 9, 2014). Since the rule articulated in Rosemond does not apply retroactively to cases on collateral review, the section 2255 savings clause is unavailable to Branham.
Accordingly, the instant petition is subject to dismissal as this Court lacks jurisdiction.
For the above stated reasons, the petition will be dismissed for lack of jurisdiction. Notably, dismissal will be without prejudice to any right Branham may have to pursue relief under § 2255 in either the sentencing court or the Court of appeals for the Eleventh Circuit.
An appropriate order will issue.
Arthur Lee Williams, White Deer, PA, pro se.
JAMES M. MUNLEY, District Court
Presently before the court is a petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241 filed by petitioner Arthur Lee Williams ("Williams"), a federal inmate incarcerated at the Federal Correctional Complex, White Deer, Pennsylvania. Preliminary review of the petition has been undertaken,
"On February 23, 2000 a jury found Williams guilty of Conspiracy to Distribute Crack Cocaine, in violation of 21 U.S.C. § 846; Conspiracy to Use or Carry a Firearm During a Drug Trafficking Offense, in violation of 18 U.S.C. § 934(o); Aiding and Abetting in the Use of a Firearm to Commit Murder During a Drug Trafficking Offense, in violation of 18 U.S.C. § 924(c)(j); and Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1)."
On January 21, 2003, Williams filed a motion to vacate pursuant to 28 U.S.C. § 2255.
Williams filed the instant petition for writ of habeas corpus seeking to have his convictions and sentence vacated based on the Supreme Court of the United States cases of
Review of a petition filed pursuant to 28 U.S.C. § 2241 is limited to circumstances where the remedy by motion under § 2255 would be inadequate or ineffective to test the legality of detention.
In the instant petition, Williams relies on
Significantly, review of the habeas petition and electronic state court criminal docket reveals that Williams has not sought permission in the United States Court of Appeals for the Fourth Circuit under 28 U.S.C. § 2244(b)(3)(A) to file a second or successive Section 2255 motion to challenge his conviction or sentence.
For the above stated reasons, the court will dismiss the instant petition filed under 28 U.S.C. § 2241, for lack of jurisdiction, without prejudice to Williams to seek leave to file a second or successive § 2255 motion in the United States Court of Appeals for the Fourth Circuit.
An appropriate order will issue.
Melvin Pollard, FCI Loretto, Loretto, PA, pro se.
Megan Farrell, United States Attorney's Office, Pittsburgh, PA, for Respondent.
KIM R. GIBSON, District Judge.
The Respondents filed an answer. Dkt. [8]. Petitioner filed a traverse. Dkt. [9]. The Magistrate Judge's Report and Recommendation, Dkt. [16], filed on October 10, 2008, recommended that the Petition for Writ of Habeas Corpus be dismissed for lack of jurisdiction because Petitioner failed to show that Section 2255 is inadequate or ineffective and so he cannot utilize a Section 2241 petition. Service was made on the Petitioner at FCI-Loretto, P.O. Box 1000, Loretto, Pa. 15940. The parties were informed that in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1) (B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrate Judges, that they had ten (10) days to file any objections. After being granted an extension of time, Petitioner filed objections. Dkt. [19].
The Court will briefly address some of those objections.
Petitioner first objects to the Report's reference to Ohio Revised Code 2925.01(E)(8), claiming that Petitioner was "not charged or convicted for" that statute. Dkt. [19] at 2. The Report's reference to Section 2925.01(E)(8) was only to explain what "bulk amount" meant under the statute that Petitioner was indisputably convicted under, i.e., Ohio Revised Code 2925.03(A)(6). Hence, there is nothing objectionable in the Report's reference to Section 2925.01(E) (8) in order to explain by way of background the meaning of the statute under which Plaintiff was convicted.
Petitioner also intimates that the Report's construction of the statute under which he was convicted is problematic because it is somehow novel. Dkt. [19] at 3. However, to be precise, the Report's construction of the Ohio statute to contain the requisite element of "possession plus intent to distribute," so as to qualify as a predicate offense under the federal sentencing guidelines for career offender status is not novel. In fact, as demonstrated by the Ohio state cases cited by the Report as well as the unpublished Sixth Circuit cases, such a construction is not novel. Indeed, it was the Sixth Circuit's decision in United States v. Montanez, 442 F.3d 485 (6th Cir.2006) that was novel. Prior to the Montanez decision, it was sufficiently clear that conviction under Section 2925.03(A)(6) was a conviction for a crime of possession with intent to distribute and so therefore, conviction thereunder qualified one for a career offender designation under the federal sentencing guidelines. This objection is meritless.
Petitioner appears to object to the fact that the Report did not read his petition with sufficient liberality entitled to by a pro se petitioner. Dkt. [19] at 4. To the contrary, the Report read his petition with abundant liberality, making stronger arguments as to why Petitioner might come within the Dorsainvil exception than any arguments propounded by Petitioner himself and then the Report quite aptly concluded that even those stronger arguments fail to bring Petitioner within the Dorsainvil exception. Moreover, to the extent that Petitioner seeks to rely on Poole v. Dotson, 469 F.Supp.2d 329 (D.Md.2007), Dkt. [19] at 5, the court notes that the Poole v. Dotson case was overturned on appeal, United States v. Poole, 531 F.3d 263 (4th Cir.2008) and had already been overturned at the time Petitioner prepared his objections but he failed to note this fact. Furthermore, Petitioner's contention that the Report "misapprehend[ed] or overlook[ed] the fact that petitioner Pollard is potentially innocent of the imprisonment as a career offender at no fault of his own[,]" Dkt. [19] at 6, could not be further from the truth. The Report thoroughly analyzed the fact that Petitioner is making a claim of being actually innocent of the sentence and that he could not have brought that claim prior to the Montanez decision. In its scholarly analysis of the claim, the Report simply concluded that such was not sufficient to bring Petitioner within the Dorsainvil exception. This Court agrees, the objections are without merit.
Because this case is being treated as having been filed pursuant to Section 2241 and is being dismissed due to lack of jurisdiction, no certificate of appeal ability is required. See, e.g., United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir.2000) ("Federal prisoner appeals from § 2241 proceedings, however, are not governed by 2253's certificate of appeal ability requirement. See 28 U.S .C. § 2253(c)(1) (B) (applying the certificate of appeal ability requirement to federal prisoner appeals from `the final order in a proceeding under section 2255'); see also Sugarman v. Pitzer, 170 F.3d 1145, 1146 (D.C.Cir.1999) (`We hold that a COA is not required for federal prisoner § 2241 appeals.')").
After de novo review of the pleadings and the documents in the case, together with the Report and Recommendation, and the Petitioner's objections to the Report, the following order is entered:
AMY REYNOLDS HAY, United States Magistrate Judge.
It is respectfully recommended that the habeas petition, ostensibly filed pursuant to 28 U.S.C. § 2241, be dismissed.
In the Northern District of Illinois, Melvin Pollard ("Petitioner") was convicted, pursuant to a plea agreement, of a drug possession offense with intent to deliver. On August 22, 2002, he was sentenced to 194 months of incarceration. His sentence was enhanced pursuant to U.S.S.G. Manual § 4B1.1 as a "career offender." This enhancement was based on a prior 1983 Ohio state conviction for drugs.
Only after Petitioner had exhausted his appeals and only after he had filed a Section 2255 motion, which was denied, the Court of Appeals for the Sixth Circuit held that the Ohio statute under which Petitioner was convicted in 1983 constituted a mere possession offense and not the requisite "possession plus intent to distribute" kind of crime and, hence, could not qualify as a predicate offense in satisfaction of the career offender designation. As a result, Petitioner filed several motions in the court of conviction, i.e., the Northern District of Illinois, raising the claim which Petitioner now raises herein, albeit without success.
Petitioner seeks to attack the validity of his sentence as imposed. However, as a general rule, attacks on the validity of the conviction and/or on the validity of the sentence as imposed (in contradistinction to a challenge to the sentence as administered, e.g., the application of credits to the sentence) are properly brought under a Section 2255 petition. In re Nwanze, 242 F.3d 521, 523 (3d Cir.2001) ("ordinarily a petitioner should advance a challenge to a conviction and sentence through the means of a motion under section 2255 in the sentencing court.").
In contrast, as a general rule, a petition under Section 2241 is properly brought where the petitioner is seeking to challenge the carrying out or the execution of his sentence (e.g., the calculation of good time credits, the running of the sentence, the calculation of the ending date, etc.). Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Bennet v. Soto, 850 F.2d 161 (3d Cir.1988), superceded by statute on other grounds as recognized by, Callwood v. Enos, 230 F.3d 627 (3d Cir.2000); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). This is only a general rule and there are instances where a Section 2241 petition that attacks the validity of the conviction and/or attacks the sentence as imposed, as Petitioner herein does, may properly be brought. However, a Section 2241 petition that attacks the validity of the conviction and/or the validity of the sentence as imposed may only be brought after it has been shown that Section 2255 is an inadequate or ineffective remedy. See 28 U.S .C. § 2255 (5th paragraph); In re Dorsainvil, 119 F.3d 245, 247 (3d Cir.1997). The statutory provision governing this case provides in pertinent part that
28 U.S.C. § 2255.
The only suggestion by Petitioner as to why Section 2255 is inadequate or ineffective is that he could not now bring a second or successive Section 2255 petition. But as explained below, the cases demonstrate such a showing is not sufficient for the Petitioner to carry his burden of proving that Section 2255 is inadequate or ineffective so that he can properly proceed under Section 2241.
The facts of Dorsainvil are well known. Mr. Dorsainvil was convicted, inter alia, of using a gun in connection with a drug crime. He was so convicted notwithstanding that he did not "use" the gun but the gun was merely present in the car from which the drugs were to be bought. Subsequent to him exhausting his appeals and a Section 2255 motion, the Supreme Court, in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), construed the criminal statute under which Dorsainvil was convicted to exclude from the ambit of the statute mere presence of a gun at a drug crime, thus arguably rendering Dorsainvil actually innocent of the crime of
Post Bailey, Mr. Dorsainvil brought a motion in the Third Circuit Court, seeking leave to file in the District Court a second or successive Section 2255 motion. The Court of Appeals denied him leave to do so, noting that he did not come within the gatekeeping requirements of AEDPA. However, the Court stayed its ruling and appointed counsel for Mr. Dorsainvil and requested several questions be briefed. Ultimately, the Court concluded that Mr. Dorsainvil had established the inadequacy of Section 2255 so as to bring his Section 2241 petition.
The Court in Dorsainvil elaborated upon the nature of the circumstances justifying a petitioner proceeding under Section 2241 to attack his conviction in these words:
Essentially, as recognized by other courts, the narrow holding of Dorsainvil permits a Section 2241 petition to attack the validity of the conviction only where the petition raises a claim of actual innocence of the crime. See, e.g., Reyes-Requena v. United States 243 F.3d 893, 904 (5th Cir.2001) ("To capture the idea that the incarceration of one whose conduct is not criminal `inherently results in a complete miscarriage of justice', most circuits have included an actual innocence component in their savings clause tests. See, e.g.,... Dorsainvil, 119 F.3d at 251 (`prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate').") (internal quotations and some citations omitted); Charles v. Chandler, 180 F.3d 753, 757 (6th Cir.1999) ("Bousley makes it clear that the claims made by the petitioners in the Davenport, Triestman, and Dorsainvil cases were really just claims of `actual innocence,' and the practical effect of the holdings in those cases was to permit a petitioner to make a claim of `actual innocence' that was otherwise barred by AEDPA.... No circuit court has to date permitted a post-AEDPA petitioner who was not effectively making a claim of `actual innocence' to utilize § 2241 (via § 2255's `savings clause') as a way of circumventing § 2255's restrictions on the filing of second or successive habeas petitions."); In re Jones, 226 F.3d 328, 333 n. 3 (4th Cir.2000) ("Importantly, neither Davenport, Triestman, nor Dorsainvil holds that § 2255 is inadequate or ineffective on the basis that the movant's Bailey claim would satisfy pre-AEDPA abuse of the writ standards. Rather, these courts have focused on the more fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, has no source of redress."); United States v. Lorentsen, 223 F.3d 950, 953-54 (9th Cir.2000) (referring to the holding of several cases, including Dorsainvil that deal with the savings clause, the court stated that "[a]lthough the precise formulations vary, each of those cases holds, in essence, that a federal prisoner who is `actually innocent' of the crime of conviction, but who never has had `an unobstructed procedural shot' at presenting a claim of innocence, may resort to § 2241 if the possibility of relief under § 2255 is foreclosed.").
Thus, whatever the precise holding of Dorsainvil, it appears that the sine qua non of coming within the so-called Dorsainvil exception is a claim of actual innocence. While a claim of actual innocence appears to be a necessary condition for coming within the narrow Dorsainvil exception, it does not appear to be a sufficient condition because run-of-the-mill actual innocence claims a la Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) or Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) are not sufficient. See, e.g., Galloway v. Samuels, No. 07-3257, 2007 WL 2904196, *4 (D.N.J., Oct.3, 2007) ("Under the circumstances presented here, Petitioner's claim of `actual innocence' is not sufficient to overcome the gatekeeping mechanism of § 2255."). It must be not only a claim of actual innocence but a claim of actual innocence coupled with the inability to have brought the claim before because of a change in the construction of the criminal statute by a court having the last word on the proper construction of the statute, which change rendered what had been thought to be criminal within the ambit of the statute, no longer criminal. See, e.g., Walker v. Williamson, 235 Fed.Appx. 888, 889 (3d Cir.2007) ("Further, the `safety valve' by which a prisoner may bypass § 2255 when it is `inadequate or ineffective to test the legality of his detention,' is extremely narrow and applies to the unusual situation in which a prisoner had no prior opportunity to challenge his conviction for a crime later deemed to be non-criminal by an intervening change in law. See Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997)). Such is not the case here."). While this seems to be the narrow rule established in Dorsainvil, i.e., one who brings such a claim of actual innocence based on an intervening change of the law which occurred after a Section 2255 has been decided or the time for filing such has run out, has established the inadequacy of Section 2255, Dorsainvil does not answer the question of whether this is the
To so state the rule/holding of Dorsainvil is to see that Petitioner does not come within the rule. Instantly, Petitioner is not claiming the benefit of a United States Supreme Court decision construing a federal criminal statute that renders conduct of which he was accused non criminal. He is not making a claim, and, given that he pleaded guilty to the crime, he cannot make a claim that he is innocent of the crime for which he was convicted.
However, there are some analogies Petitioner can make, (even if he does not do so, or at least, not in an explicit way), to Dorsainvil, even though the court finds such insufficient to establish the inadequacy of Section 2255. Essentially, there are two elements of Petitioner's case that are analogous to Dornsainvil. First, although Petitioner is not claiming actual innocence of the federal
Hence, this Court is squarely faced with the question of whether one who claims to be actually innocent of the sentence and who could not have raised the issue earlier than he did due to an intervening construction of a statute, has satisfied his burden to show that Section 2255 is inadequate or ineffective. Dorsainvil does not answer, and more importantly, does not purport to answer this precise question. Dorsainvil, 119 F.3d at 252 ("Our holding that in this circumstance § 2255 is inadequate or ineffective is therefore a narrow one. In the posture of the case before us, we need go no further to consider the other situations, if any, in which the `inadequate or ineffective' language of § 2255 may be applicable."). Confronted with the facts of this case, it is for this court to confront the question not answered in Dorsainvil, to wit, in the circumstances confronting this court now, has Petitioner carried his burden to show that Section 2255 is inadequate or ineffective so as to be able to bring this Section 2241 petition. For the following reasons, the court finds Petitioner has not carried his burden to show that he is entitled to have this case considered under Section 2241.
First, Petitioner fails to carry his burden because he has waived his right to bring any such challenge in his plea agreement.
Id. (footnotes omitted). See also Little v. Hamidullah, 177 Fed.Appx. 375 (4th Cir.2006) (rejecting claim of actual innocence of sentence enhancement); Green v. Hemingway, 67 Fed. Appx. 255, 257 (6th Cir.2003) ("Even if it is assumed that Green's allegations are true, the `actual innocence' exception of the savings clause of § 2255, as it has been interpreted by this court, is `actual innocence of the underlying, substantive offense, not `innocence' of a sentencing factor.'"); White v. Rivera, 518 F.Supp.2d 752, 757 n. 2 (D.S.C.2007) ("Furthermore, his `actual innocence' argument concerning an enhancement does not entitle him to relief under § 2241, as it `is not the type of argument that courts have recognized may warrant review under § 2241.'") (quoting, Davis v. United States, No. C/A8:05-2778, 2006 WL 89505, at *6 (D.S.C. Jan.12, 2006)).
Even if, however, some mere sentencing claims (as opposed to claims attacking the conviction) were sufficient to establish the inadequacy of Section 2255, Petitioner's would not be sufficient because "the
The third reason that the court is not convinced that Petitioner has established the inadequacy of Section 2255 is that unlike in Dorsainvil, where the Supreme Court was the final arbiter of the meaning of the federal criminal statute at issue therein and that court's construction could not be undone except prospectively by the Congress via an amendment to the statute, the case upon which Petitioner herein relies is a decision of the Sixth Circuit Federal Court of Appeals construing an Ohio criminal statute. The Sixth Circuit is not the final arbiter of the meaning of an Ohio criminal statute but the Ohio State Supreme Court is
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1) (B) & (C), and Local Rule 72.1.4 B, the parties are permitted to file written objections and responses thereto in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections may constitute waiver of any appellate rights.
Deangelo Jerome Downs, Waymart, PA, pro se.
Kane, Judge
Petitioner was indicted on January 15, 2009 in the Southern District of Iowa on a one count charge of possession with intent to distribute cocaine base.
In his instant petition, Petitioner contends that the sentencing court failed to inform him that "he was required to have knowledge of the Controlled Substance Act or Analogue of § 802(32)(A) of Schedule III ... or that death or serious bodily injury had to result from the use of the cocaine base ... nor that he was required to have advanced knowledge to be found guilty of Aid & Abetting in the Conspiracy...." (
A review of the petition, as well as PACER, the online national index providing public access to court electronic records, reveals that Petitioner has previously filed two separate motions to vacate, set aside, and correct sentence pursuant to 28 U.S.C. § 2255 with the District Court for the Southern District of Iowa, Central Division.
The petition will be given preliminary consideration pursuant to Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, as made applicable to § 2241 cases by Rule 1 thereof.
It is well settled that a federal criminal defendant's conviction and sentence are subject to collateral attack in a proceeding before the sentencing court pursuant to 28 U.S.C. § 2255.
However, if the Petitioner shows "that a § 2255 motion `is inadequate or ineffective to test the legality of his detention,' ... [he may] resort to § 2241 to challenge the validity of the conviction or sentence."
A motion under § 2255 is "`inadequate or ineffective'" only where it is established "`that some limitation of scope or procedure would prevent a Section 2255 proceeding from affording the prisoner a full hearing and adjudication of his claim of wrongful detention.'"
Here, Petitioner challenges the imposition of his sentence, not its execution. Therefore, to proceed under § 2241, he must demonstrate that a § 2255 motion "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). Petitioner has not met this burden. Indeed, his claims do not fall within the purview of the savings clause, as he has neither demonstrated that an intervening change in the law made his underlying conviction non-criminal, nor has shown that other extraordinary circumstances warrant relief. Moreover, the Court notes that the instant petition is identical to Petitioner's previous § 2255 petition,
An appropriate Order follows.
28 U.S.C. § 2255(h).
State v. Williams, No. 7609, 1983 WL 4973, at *1 (Ohio App. Sept.30, 1983). Furthermore, "[u]nder R.C. [i.e., Revised Code] 2925.01(E)(8), `bulk amount' of any drug is defined as either 120 grams or 30 times the maximum daily dose[.]" State v. Seger, No. C-810574, 1982 WL 8596, at *1 (Ohio App. June 23, 1982). Essentially, the possession of a large amount of drugs under the Ohio state statute permits a presumption of intent to distribute and is punished as such. See, e.g., State v. Carpenter, No. 7-88-1, 1989 WL 22030, at *6 (Ohio App. March 9, 1989), wherein the Court explained that
See also Gibbs v. United States, 3 Fed.Appx. 404, 406 (6th Cir.2001), in effect abrogated by, United States v. Montanez, 442 F.3d 485 (6th Cir.2006). The Gibbs court noted that
See also United States v. Coteat, 133 Fed.Appx. 177, 178 (6th Cir.2005) ("The Guidelines define a `controlled substance offense' as `an offense under federal or state law ... that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.' U.S. Sentencing Guidelines Manual § 4B1.2(b) (2003).").
U.S.A. v. Pollard, No. 1:02-cr-020 (N.D. Ill. Dkt. 18 at 10, ¶ 13)
