Opinion
Civil Action No. 18-1363
11-01-2018
DAELON HILL-JOHNSON, Petitioner, v. ORLANDO HARPER, Respondent.
Judge Marilyn J. Horan/Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Petition for Writ of Habeas Corpus by a federal convict (the "Petition"), filed pursuant to 28 U.S.C. § 2241, be dismissed pre-service because Petitioner cannot show that a Section 2255 Motion is inadequate or ineffective given that he has not filed a Section 2255 Motion and may yet do so.
II. REPORT
At the time of filing the Petition, Daelon Hill-Johnson ("Petitioner") was apparently housed in the Allegheny County Jail ("ACJ"), seemingly awaiting proceedings on state charges. By means of the Petition, Petitioner seeks to challenge his conviction obtained in this Court by means of a guilty plea before the Honorable Arthur J. Schwab on February 15, 2018. USA v. Hill-Johnson, 2:17-cr-226-AJS-1 (W.D. Pa. ECF No. 46). Petitioner pleaded guilty to a drug possession charge and a firearm violation. Petitioner has not yet been sentenced. However, on May 15, 2018, Petitioner, through counsel, filed a Motion to Withdraw Plea of Guilty. Id. ECF No. 55. Judge Schwab denied the Motion to Withdraw Plea of Guilty on May 31, 2018. Id. ECF No. 59. On June 4, 2018, Petitioner filed a pro se motion for reconsideration of Judge Schwab's May 31, 2018 Order. Id. ECF No. 60. By text order dated June 4, 2018, Judge Schwab ordered the United States Attorney's Office to file a response to Petitioner's Motion for Reconsideration. Id. ECF No. 61.
We say "apparently" housed at the ACJ because Petitioner's address of record is a private residence and not the ACJ, even though he names the warden of the ACJ as the appropriate Respondent. The Court also says seemingly awaiting proceedings on state charges because in Petitioner's federal court criminal proceedings, the United States Attorney asserted in their Application and Order for Writ of Habeas Corpus Ad Prosequendam that Petitioner "is presently confined in the Allegheny County Jail, Pittsburgh, PA, awaiting a disposition of state charges." USA v. Hill-Johnson, 2:17-cr-226-AJS-1 (W.D. Pa. ECF No. 76 ¶ 4). We take judicial notice of the fact that Petitioner has currently pending criminal charges in the Court of Common Pleas of Allegheny County in the case of Commonwealth v. Hill-Johnson, CP-02-CR-0005565-2016, the docket for which case is available at:
https://uj sportal.pacourts.us/docketsheets/cp.aspx#
On June 6, 2018, Petitioner's counsel filed a Motion to Withdraw. Id. ECF No. 62. On June 12, 2018, the United States Attorney's Office filed their response to Petitioner's Motion for Reconsideration. Id. ECF No. 65. On June 15, 2018, Judge Schwab denied Petitioner's Motion for Reconsideration. Id. ECF No. 68.
Three days later, on June 18, 2018, Petitioner filed a second pro se Motion to Withdraw Guilty Plea. Id. ECF No. 69. The following day on June 19, 2018, Judge Schwab denied Petitioner's second Motion to Withdraw Guilty Plea by text order for the reasons previously set forth in Judge Schwab's May 31, 2018 Order, denying Petitioner's first Motion to Withdraw Plea of Guilty. Id. ECF No. 70. On June 21, 2018, Judge Schwab granted the Motion to Withdraw as counsel filed by Petitioner's counsel. Id. ECF No. 73. On July 5, 2018, Judge Schwab appointed new counsel for Petitioner. Id. ECF No. 75. Currently, Petitioner is scheduled to be sentenced on November 27, 2018. Id. ECF No. 77 (writ of habeas corpus ad prosequendam issued for sentencing set for 11/27/2018).
We note that Petitioner has filed an interlocutory appeal to the United States Court of Appeals for the Third Circuit from the Judge Schwab's orders denying Petitioner's Motion to withdraw his guilty plea and his motion for reconsideration of that order. Id. ECF No. 83. A final Presentence Investigation Report was filed on October 23, 2018. Id. ECF No. 80. The prosecution filed its Position with Respect to Sentencing Factors on October 29, 2018. Id. ECF No. 85.
A. Rule 4 pre-service dismissals
Even though the Respondent has not been formally served with process yet, this Court may, pursuant to Rule 4 of the Rules Governing Section 2255 cases ("Rule 4"), dismiss the Petition if it plainly appears on its face that the Petitioner is not entitled to relief under habeas.
Rule 4 of the Rules Governing Section 2255 Proceedings cases provides in relevant part that:
"Courts have used Rule 4 of the habeas corpus rules to summarily dismiss facially insufficient habeas petitions brought under § 2241. Howard v. Haley, 2001 WL 303534, * 1 (S.D. Ala. March 8, 2001); Howard v. Certain Unnamed Aircraft Pilots, 1995 WL 431150, * 2 (N.D. Ill. July 18, 1995). Because the petition is facially insufficient, it will be dismissed." Perez v. Hemingway, 157 F.Supp.2d 790, 795 (E.D. Mich. 2001). Accord United States v. Recinos-Gallegos, 151 F.Supp.2d 659 (D. Md. 2001) (dismissing petition construed as Section 2241 pursuant to Rule 4); U.S. v. Recinos-Gallegos, 151 F.Supp.2d 659 (D. Md. 2001) (applying Rule 4 of Section 2255 to Section 2241 petition). --------
The judge who receives the [Section 2255] motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the movant is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.Pursuant to Rule 4, it is recommended that the instant Petition be dismissed before being served because it plainly appears from the face of the Petition and the record of prior proceedings that Petitioner is not entitled to relief. The Petition should be dismissed pre-service because Petitioner fails to carry his burden to show that he is permitted to utilize Section 2241 in order to challenge his conviction, given that he cannot show a Section 2255 Motion is inadequate or ineffective to challenge his conviction since he has not yet even filed a Section 2255 Motion and, indeed, has not even been sentenced yet.
B. Discussion
Petitioner seeks to utilize this Section 2241 Petition to challenge the validity of his federal court conviction, arguing that his Fourth Amendment rights were violated, and that he was racially profiled, and that his arrest was made without probable cause, and that his trial counsel was ineffective. ECF No. 1. By way of relief, Petitioner asks this Court to dismiss the indictment with prejudice. Id. ¶ 15. However, Petitioner cannot utilize a Section 2241 Petition to attack his conviction because he cannot as a matter of law show that a Section 2255 Motion is inadequate or ineffective to challenge his conviction.
As a general rule, attacks by federal convicts on the validity of the conviction and/or on the validity of the sentence, as imposed (in contrast to a challenge to the sentence as administered), are properly brought by a Section 2255 motion in the federal district court where the federal prisoner was convicted and sentenced. In re Nwanze, 242 F.3d 521, 523 (3d Cir. 2001) ("[O]rdinarily 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 federal convict 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.) and is filed in the federal court of the judicial district where the federal convict is then incarcerated. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Bennet v. Soto, 850 F.2d 161 (3d Cir. 1988), superseded 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, which attacks the validity of the conviction, as Petitioner herein does, or attacks the sentence, as imposed, may properly be brought. However, a Section 2241 Petition, which attacks the validity of the conviction and/or the validity of the sentence, as imposed, may only be brought after the federal convict has 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).
In the case at hand, we find that Petitioner fails to carry his burden to show that a Section 2255 Motion is inadequate or ineffective to raise the challenges that seeks to raise herein. This is because he has not yet filed a Section 2255 Motion, and indeed, cannot yet file a Section 2255 Motion because he has not yet even been sentenced. See, e.g. Brown v. Bledsoe, 367 F. App'x 294 (3d Cir. 2010).
The United States Court of Appeals for the Third Circuit in Brown v. Bledsoe, clearly explained that:
Section 2241 is unavailable to Brown to challenge his federal conviction and sentence unless a § 2255 motion would be "inadequate or ineffective." Because Brown concedes that he had yet to pursue § 2255 relief at the time he filed his § 2241 petition,2 he plainly cannot show that § 2255 is inadequate or ineffective. Relief, if any, on Brown's claims must first be sought under § 2255 in the sentencing court. Further, as the District Court fully explained, Brown's assertions of "actual innocence" do not render § 2255 inadequate or ineffective. Brown simply is not in the "unusual position ... of a prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate [.]" In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).Id. at 295. What the Third Circuit stated in Brown v. Bledsoe applies equally here, Petitioner simply cannot show that Section 2255 is inadequate or ineffective without having first filed a Section 2255 and having failed to obtain relief thereby. Accordingly, the Petition should be dismissed.
2 The record indicates that Brown's direct appeal proceedings remained pending at the time he filed the § 2241 petition.
III. CONCLUSION
For the reasons set forth herein, it is recommended that the Petition be dismissed pre-service.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted, Date: November 1, 2018
s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Marilyn J. Horan
United States District Judge
DAELON HILL-JOHNSON
2655 Brighton Road
Pittsburgh, PA 15212
(site last visited 11/1/2018).