Opinion
Case No. 1:18-cv-339
04-13-2020
DAVID ANTOINE LUSTER, Petitioner v. WARDEN FCI MCKEAN, Respondent
UNITED STATES DISTRICT JUDGE SUSAN PARADISE BAXTER REPORT AND RECOMMENDATION I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus filed by federal prisoner David Antoine Luster (Luster or Petitioner) pursuant to 28 U.S.C. § 2241 be dismissed for lack of jurisdiction. II. Report
Petitioner is incarcerated at FCI-McKean, a federal correctional institution located within the territorial boundaries of the Western District of Pennsylvania. The Warden of FCI-McKean is the Respondent in this action.
A. Background
In 2004, Luster pled guilty in five separate cases in the United States District Court for the Middle District of Georgia (the "sentencing court") to eight counts of bank robbery and two counts of using or carrying a firearm during a crime of violence. See United States v. Luster, 5:03-cr-52-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-98-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-99-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-100-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-105-CAR (M.D. Ga.). On April 1, 2004, the sentencing court sentenced Luster to an aggregate 535-month term of imprisonment. The Court of Appeals for the Eleventh Circuit affirmed his conviction and sentence on January 20, 2005. See ECF No. 56 in United States v. Luster, 5:03-cr-52-CAR (M.D. Ga. Feb. 9, 2005).
Following his direct appeal, Luster filed at least five 28 U.S.C. § 2255 motions challenging his conviction or sentence. See ECF Nos. 57, 104, 110, 113, & 119 in United States v. Luster, 5:03-cr-52-CAR (M.D. Ga.). On approximately ten additional occasions, Luster sought authorization from the Court of Appeals for the Eleventh Circuit to authorize the district court to consider a second or successive § 2255 petition. See ECF No. 102, 112, 116, 117, 121, 122, 125, 127, 128, & 129 in United States v. Luster, 5:03-cr-52 (M.D. Ga.). Luster has also filed § 2241 petitions in the United States District Courts for the Middle District of Pennsylvania, Middle District of Georgia, and Western District of Pennsylvania. See Luster v. Oddo, 2017 WL 3821468 (M.D. Ga. Aug. 31, 2017); Luster v. White, No. 4:18-cv-763 (M.D. Pa. 2018); Luster v. Oddo, No. 4:17-cv-1074 (M.D. Pa. 2017); Luster v. Oddo, No. 4:17-cv-684 (M.D. Pa. 2017); Luster v. Williams, No. 1:18-cv-160 (W.D. Pa. 2018).
On October 26, 2018, Luster filed the pending habeas petition pursuant to 28 U.S.C. § 2241. Luster challenges the legality of his conviction and sentence pursuant to the United States Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), in which the Court held that a provision defining certain "aggravated felonies" in 18 U.S.C. § 16(b) was unconstitutionally void for vagueness. Luster argues that the definition of "crime of violence" in 18 U.S.C. § 924(c)(3)(B), the statute pursuant to which he was sentenced, is unconstitutionally vague for similar reasons.
Also pending before the Court is a subsequent filing, entitled "Addendum to 2241 Actual Innocence Claim," in which Luster argues that the newly-enacted "First Step Act" clarified 18 U.S.C. § 924(c)(1)(C)(i) in such a manner as to provide him with retroactive relief. See ECF No. 9. See also ECF No. 16.
Luster has also filed a separate § 2241 action based on the First Step Act. See Luster v. Trate, No. 1:19-cv-12 (W.D. Pa.).
B. Discussion
For federal prisoners, "[t]he 'core' habeas corpus action is a prisoner challenging the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid." McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010); see also Cardona v. Bledsoe, 681 F.3d 533, 535-38 (3d Cir. 2012). "Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer federal jurisdiction over habeas petitions filed by federal inmates." Cardona, 681 F.3d at 535. Section 2255 motions must be filed in the federal district court that imposed the conviction and sentence the prisoner is challenging. 28 U.SC. § 2255(a). In contrast, a habeas corpus action pursuant to § 2241 must be brought in the custodial court - i.e., the federal district court in the district in which the prisoner is incarcerated. Bruce v. Warden Lewisburg USP, 868 F.3d 170, 178 (3d Cir. 2017).
Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners may challenge the validity of their conviction or sentence on collateral review. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (emphasis added). By enacting § 2255, Congress provided "[a] new remedial mechanism" to "replace[] traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, imposed in violation of the Constitution or laws of the United States." Boumediene v. Bush, 553 U.S. 723, 774 (2008) (internal quotation marks omitted). The statute's "sole purpose was to minimize the difficulties encountered in [traditional] habeas corpus hearings by affording the same rights in another and more convenient forum." Hayman, 342 U.S. at 219; see also Hill v. United States, 368 U.S. 424, 427, 428 n.5 (1962). Thus, "a federal prisoner's first (and most often only) route for collateral review of his conviction or sentence is under § 2255." Bruce, 868 F.3d at 178.
As for § 2241, that statute "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Cardona, 681 F.3d at 535 (internal quotations and citations omitted) (emphasis added); Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005) (defining "execution of" the sentence to mean the manner in which it is "put into effect" or "carr[ied] out"). Two types of claims may ordinarily be litigated in a § 2241 proceeding. First, a prisoner may challenge conduct undertaken by the Federal Bureau of Prisons (the "BOP") that affects the duration of his custody. For example, a prisoner can challenge the manner in which the BOP is computing his federal sentence, see, e.g., Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990), or the constitutionality of a BOP disciplinary action that resulted in the loss of good conduct sentencing credits, Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008). Secondly, a prisoner can challenge BOP conduct that "conflict[s] with express statements in the applicable sentencing judgment." Cardona, 681 F.3d at 536; Woodall, 432 F.3d at 243. The prisoner must "allege that [the] BOP's conduct was somehow inconsistent with a command or recommendation in the sentencing judgment." Cardona, 681 F.3d at 536-37 (noting that the phrase "execution of the sentence" includes claims "that the BOP was not properly 'putting into effect' or 'carrying out' the directives of the sentencing judgment.") (internal quotations and alterations omitted).
Luster's claims in the instant § 2241 action do not fall into either of these categories. Rather than attacking the execution of his sentence, Luster contends that the sentencing court erred in convicting him of a "crime of violence." As recounted above, § 2255 ordinarily prohibits a court from entertaining a § 2241 petition filed by a federal prisoner challenging the validity of his underlying conviction or sentence. There is, however, one important statutory exception: where it "appears that the remedy by [§ 2255 motion] is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). This provision, commonly referred to as § 2255's "savings clause," forms the lone potential basis for Luster's claims in the instant case. Bruce, 868 F.3d at 174, 178-79.
Since the amendments to AEDPA were enacted in 1996, the Court of Appeals for the Third Circuit has recognized only one circumstance in which § 2255's remedy has been deemed "inadequate or ineffective": when a prisoner "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). In Dorsainvil, the inmate-petitioner, Ocsulis Dorsainvil, had been convicted of using a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) despite the fact that he did not "use" the gun; it was merely present in the car from which the drugs were sold. After Dorsainvil had already litigated his initial (unsuccessful) § 2255 motion, the United States Supreme Court decided Bailey v. United States, 516 U.S. 137 (1995), in which it held that the "use" prong of § 924(c)(1) applied only to "active employment of the firearm," as opposed to mere possession. Bailey, 516 U.S. at 144. Dorsainvil applied to the Third Circuit for permission to file a second or successive § 2255 petition, arguing that Bailey had rendered noncriminal the conduct for which he had been convicted. However, as noted above, § 2255 requires that a second or successive § 2255 motion be based on either "newly discovered evidence" or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." See 28 U.S.C. § 2255(h). Because Bailey involved a new statutory rule, rather than "a new rule of constitutional law," the Third Circuit had no choice but to deny his request. Dorsainvil, 119 F.3d at 247-48 (quoting 28 U.S.C. § 2255) (emphasis added). The Court lamented, however, that "Dorsainvil [did] not have and, because of the circumstance that he was convicted for a violation of § 924(c)(1) before the Bailey decision, never had an opportunity to challenge his conviction as inconsistent with the Supreme Court's interpretation of § 924(c)(1)." Id. at 250-51. Deeming it a "complete miscarriage of justice to punish a defendant for an act that the law does not make criminal," the Court concluded that § 2255 was "inadequate or ineffective to test the legality of [Dorsainvil's] detention." Id. at 251 (internal quotations omitted; brackets in original). Thus, "in the unusual situation where an intervening change in statutory interpretation runs the risk that an individual was convicted of conduct that is not a crime, and that change in the law applies retroactively in cases on collateral review," a petitioner "may seek another round of post-conviction review under § 2241." Bruce, 868 F.3d at 179.
In Bruce, the Court of Appeals for the Third Circuit set forth the two conditions that a federal prisoner must satisfy in order to take advantage of § 2255's savings clause under Dorsainvil. "First, a prisoner must assert 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 and our own precedent construing an intervening Supreme Court decision - in other words, when there is a change in statutory caselaw that applies retroactively in cases on collateral review." Bruce, 868 F.3d at 180 (internal quotations omitted). "[S]econd, the prisoner must be 'otherwise barred from challenging the legality of the conviction under § 2255.'" Id. (quoting U.S. v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013)).
In the instant case, Petitioner has failed to satisfy the second of these conditions. As recently noted by the District Court for the Middle District of Pennsylvania (in, coincidentally, another of Luster's § 2241 cases):
"Section 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)]. See also, Alexander v. Williamson, 324 Fed. Appx. 149, 151 (3d Cir. 2009). Here, Petitioner is clearly challenging the validity of his guilty plea and sentence which were entered in the Middle District of Georgia. He must do so by following the requirements of § 2255. As previously discussed, Petitioner previously filed a direct appeal and multiple § 2255 actions.
* * * * * * *
Furthermore, the United States Court of Appeals for the Third Circuit recently recognized that § 2241 was not the appropriate vehicle to pursue a Dimaya based claim. See Rosello, v. Warden, FCI-Allenwood, 2018 WL 2357313 * 3, n. 5 (3d. Cir. May 24, 2018). Accordingly, Petitioner's reliance on Dimaya in seeking § 2241 relief is also misplaced.
* * * * * * *
As recognized by the Honorable Kim R. Gibson in Pollard v. Yost, No. 07-235, 2008 WL 4933599, at *6 (W.D. Pa. Nov. 18, 2008), for a challenge to a federal conviction to be presented by a federal inmate by way of a § 2241 petition, there must not only be "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."
It is evident here that Petitioner's pending claim does not fall within the narrow Dorsainvil exception to the general rule that section 2255 provides the exclusive avenue by which a federal prisoner may mount a collateral challenge to his conviction or sentence. See Levan v. Sneizek, 325 Fed. Appx. 55, 57 (3d Cir. April 2009). As considered in Cradle, the fact that Luster's § 2255 action . . . was denied by the sentencing court does not warrant a determination that § 2255 is inadequate or ineffective to test the legality of Petitioner's guilty plea.
Given the above decisions, especially the Third Circuit's recent determination that § 2241 is not the appropriate vehicle to pursue a Dimaya claim, and Petitioner's failure to present this Court with any authority to support a determination that any federal court has held that a Dimaya based claim such as the one presently raised may be pursued via a § 2241 proceeding, habeas corpus review is not appropriate here.Luster v. White, 2018 WL 2981333, at *2 (M.D. Pa. June 14, 2018). See also Trevino v. United States, 2018 WL 5437741, at *3 (M.D. Pa. Oct. 29, 2018) (noting that "§ 2241 is not the appropriate vehicle to pursue a Dimaya based claim."); Montgomery v. Young, 2020 WL 859306, at *3 (D.N.J. Feb. 21, 2020) (same). Because Luster has failed to demonstrate that the remedy provided by § 2255 would otherwise be inadequate or ineffective, his Dimaya claim must be dismissed for lack of jurisdiction.
In a series of addenda to his original petition, Luster also asserts that he is actually innocent of his sentence because the Fair Sentencing Act of 2010 and the First Step Act of 2018 have since reduced the applicable penalty for his offense of conviction. See ECF Nos. 9, 16. Among other things, the First Step Act amended the language of 18 U.S.C. § 924(c)(1)(C) by striking "second or subsequent conviction under this subsection" and inserting "violation of this subsection that occurs after a prior conviction under this subsection has become final." First Step Act of 2018 § 403(a), Pub. L. 115-391, 132 Stat. 5194, 5221-22 (2018). Under the old version of the statute, applicable at the time of Luster's conviction and sentence, multiple § 924(c) convictions stemming from the same indictment could be stacked for purposes of qualifying a defendant as a "second or subsequent" violator and subjecting him to a higher mandatory minimum penalty. As applied to Luster, his conviction of a § 924(c) charge at Count 2 of his indictment qualified as a predicate conviction for the second § 924(c) charge at Count 4, subjecting him to a mandatory minimum penalty under § 924(c)(1)(C)(i). Under the amended version of the statute, the enhanced mandatory minimum applies only if the prior qualifying § 924(c) conviction stemmed from a prior final conviction. Luster contends that this change in the law entitles him to relief.
Luster's argument fails for two reasons. First, § 403(a) does not apply retroactively to Luster's sentence. As the Court of Appeals for the Third Circuit recently held:
In general, "a new criminal statute that 'repeal[s]' an older criminal statute shall not change the penalties 'incurred' under that older statute 'unless the repealing Act shall so expressly provide.'" Dorsey v. United States, 567 U.S. 260, 272, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) (quoting 1 U.S.C. § 109). Section 403 of the First Step Act does not expressly state that it applies to those, like Meehan, who were sentenced before its effective date, December 21, 2018. To the contrary, the Act specifies that § 403(a), "and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment." Pub. L. No. 115-391, § 403(b). Therefore, § 403(a), by its plain terms, does not apply retroactively to Meehan, who had already been sentenced when the First Step Act was enacted.United States v. Meehan, -- Fed. Appx. --, 2020 WL 261241, at *2 (3d Cir. Jan. 17, 2020).
Luster disputes this conclusion, arguing that the word "clarification" in the heading of § 403 of the First Step Act suggests that Congress always meant for Section 924(c) to apply only to final offenses, rendering the amendment retroactive. The Third Circuit rejected this precise argument, noting that "we do not consider an enacting body's description of an amendment as a 'clarification' of the pre-amendment law to necessarily be relevant to the judicial analysis. " Meehan, -- Fed. Appx. --, 2020 WL 261241, at *2 (quoting Levy v. Sterling Holding Co., LLC, 544 F.3d 493, 507 (3d Cir. 2008)). See also Merit Mgmt. Grp., LP v. FTI Consulting, — U.S. —, 138 S. Ct. 883, 893, 200 L.Ed.2d 183 (2018) (stating that "section headings cannot limit the plain meaning of a statutory text"). Rather, "because Congress made clear in § 403(b) that § 403(a) of the First Step Act applies only to defendants who had not been sentenced as of the date of enactment, the use of the term "clarification" in § 403's heading is not relevant to the retroactivity determination." Id.
Secondly, even if Luster could seek relief by way of the First Step Act, he has made no attempt to meet his burden of demonstrating that a motion under § 2255 is inadequate or ineffective to challenge the legality of his detention. As noted above, sentencing claims "[do] not fall within the purview of the [Dorsenvail] savings clause." Adderly v. Zickefoose, 459 Fed. Appx. 73, 75 (3d Cir. 2012). Therefore, Petitioner may not rely upon § 2241 to raise his claim that he is actually innocent of his sentence. See, e.g., Murray v. Warden Fairton FCI, 710 Fed. Appx. 518, 520 (3d Cir. 2018) ("We have not held that innocence-of-the-sentence claims fall within the exception to the rule that habeas claims must be brought in § 2255 motions."); Jackson v. Warden of Facility USP-Allenwood, 2020 WL 473411, at *3 (M.D. Pa. Jan. 29, 2020) (dismissing inmate's § 2241 petition raising claim for relief under the First Step Act for lack of jurisdiction); Johnson v. White, 2020 WL 416849, at *2 (M.D. Pa. Jan. 27, 2020) (same); Gordon v. United States, 2019 WL 5864492, at *3-4 (M.D. Pa. Nov. 8, 2019) (same). Thus, the Court should dismiss Luster's First Step Act claim for lack of jurisdiction as well. III. Conclusion
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be dismissed, with prejudice. IV. Notice
Because "[f]ederal prisoner appeals from the denial of a habeas corpus proceeding are not governed by the certificate of appealability requirement," the Court need not make a certificate of appealability determination in this matter. Williams v. McKean, 2019 WL 1118057, at *5 n. 6 (W.D. Pa. Mar. 11, 2019) (citing United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012)); 28 U.S.C. § 2253(c)(1)(B). --------
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: April 13, 2020