Opinion
Civil Action No. 15-1232
08-13-2018
FREDDIE CLECKLEY, Petitioner, v. BARBARA RICKARD, Warden, Respondent.
Judge Nora Barry Fischer/Chief Magistrate Judge Maureen P. Kelly Re: ECF No. 43 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Freddie Cleckley ("Petitioner"), a federal convict, has filed an amended Petition, ostensibly under 28 U.S.C. § 2241 for Writ of Habeas Corpus and a Supplemental Memorandum of Law, (collectively, the "Amended Petition"), ECF Nos. 43 and 44, seeking to attack his federal sentence as imposed. It is respectfully recommended that the Amended Petition be, sua sponte, dismissed for lack of subject matter jurisdiction.
II. REPORT
The Amended Petition is simply the latest in Petitioner's multiple and, thus far, unsuccessful attempts to attack his conviction and sentence obtained in this Court. U.S.A. v. Cleckley, 2:09-cr-246 (W.D. Pa.). Those convictions were for: 1) possession of cocaine with intent to distribute, 2) carrying a firearm during and in relation to a drug trafficking crime and 3) possession of a firearm by a convicted felon. Petitioner pleaded guilty to all of these three offenses. Petitioner was sentenced to 188 months for cocaine possession, and 120 months for the felon in possession conviction which sentence was made concurrent to the 188 months and a consecutive sentence of 60 months for carrying a firearm in relation to a drug trafficking crime. Id. (July 25, 2014) ECF No. 86 at 1 - 2. Petitioner was also sentenced to a 5-year term of supervised release. Id. Presently, Petitioner contends that he was illegally subjected to a sentence enhancement as a "career offender" under the advisory United States Sentencing Guidelines because a predicate Pennsylvania state aggravated assault conviction which was relied upon to qualify him as a career offender could not legally qualify him as such.
Given that the Court writes primarily for the parties, the Court will dispense with a lengthy recitation of the facts and history of this case. The Court refers the reader to the opinion of the United States Court of Appeals for the Third Circuit in Petitioner's direct appeal for further background information. U.S.A. v. Cleckley, 440 F. App'x 115 (3d Cir. 2011).
We note that Petitioner initiated this habeas proceeding in the United States District Court for the Northern District of West Virginia as that was the location of Petitioner's federal confinement and hence, his immediate custodian. Cleckley v. Saad, No. 3:15-cv-61 (N.D.W.V.). Petitioner then filed a motion in that Court, requesting it to transfer this habeas case to this Court. Id. ECF No. 11. That Court ordered the United States Attorney for the Northern District of West Virginia to respond to Petitioner's Motion to Transfer. Id. ECF No. 12. The United States Attorney filed their response as directed, id. ECF No. 14, wherein they indicated their concurrence in the transfer. Accordingly, the District Court for the Northern District of West Virginia entered an order transferring the case to the United States District Court for the Western District of Pennsylvania, the District in which Petitioner was convicted and sentenced, which sentence is the object of his attack in these proceedings. Id. (Sept. 15, 2015) ECF No. 15.
Petitioner raises the following two Grounds in the Amended Petition:
Ground One: Unconstitutional Enhancement.... That in light [of] Supreme Court Circuit bursting rulings, the petitioner[']s predicate offense in reference to prior convictions for drug possession and aggravated assault are no
longer requisites for the career offender of the guidelines, where the residual and force clause has ambiguity within it[s] fundamental application.ECF No. 43 at 6 - 7.
Ground Two: Due Process Violation .... Where in the application of the career offender application the Court did not afford the petitioner the benifit [sic] of the due process. Where the inapplicability of the career offender was unconstitutionally applied to petitioner.
It is important to note at the outset that this case implicates the "savings clause" contained in 28 U.S.C. § 2255(h) which permits a federal prisoner to utilize a Section 2241 habeas petition to attack his conviction or sentence, as imposed, where the federal prisoner can show that a Section 2255 motion is inadequate or ineffective to do so. We further note that the "savings clause" jurisprudence can be confusing and conflicting, and we can do no better than to quote the following:
Federal habeas law is rather basic. A prisoner challenging the legality of his sentence must do so under 28 U.S.C. § 2255; a prisoner challenging the legality of his detention must do so under 28 U.S.C. § 2241. But from these roots a tangled forest has grown. Part of the confusion stems from the back door that Congress created between Sections 2255 and 2241: When Section 2255 "is inadequate or ineffective to test the legality of his detention," the prisoner may bring his challenge under Section 2241. 28 U.S.C. § 2255(e). The circuits are split on when Section 2255 is "inadequate or ineffective." Many require a petitioner to prove his "actual innocence" before invoking the savings clause and attacking his sentence under Section 2241. In this case, the Sixth Circuit went a different way.Hill v. Sepanek, CV 14-85-ART, 2017 WL 73338, at *1 (E.D. Ky. Jan. 6, 2017).
To this point, however, the debate has largely overlooked the practical problems a district court faces when it must provide Section 2255 relief via Section 2241.
There is a split between Circuits with respect to "savings clause" jurisprudence, leading to similarly situated federal convicts receiving vastly different treatment by happenstance of the Circuit in which they find themselves to be incarcerated. See, e.g., Bruce v. Warden, 868 F.3d 170, 180 (3d Cir. 2017) (describing the difference in treatment between two brothers convicted in federal court of the same crimes, raising the same issue but one (incarcerated within the Third Circuit) being permitted to proceed by means of a Section 2241 petition via the savings clause but the other (incarcerated within the Eleventh Circuit) not being so permitted, merely because of a difference in Circuit law on the requirements of the savings clause).
Even within a Circuit, there may be tension in the savings clause jurisprudence. Compare Thomas v. Warden, Fort Dix FCI, 712 F. App'x 126, 128 n.3 (3d Cir. 2017) ("We have not determined whether § 2255(e)'s saving clause is available when a defendant seeks to challenge his career offender designation") with Garcia v. Warden, Fort Dix FCI, 596 F. App'x 79, 82 (3d Cir. 2014) (citing Okereke and concluding in summary affirmance that "Garcia's career offender sentence claim does not fall within the scope of the savings clause. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), dealt with sentencing and did not render conspiracy to import heroin, the crime for which [petitioner] was convicted, not criminal).").
With this background in mind, we now address the instant challenge by Petitioner.
A. PETITIONER CHALLENGES HIS SENTENCE AS IMPOSED.
As relevant to the Amended Petition, it is sufficient to know that Petitioner "qualified" for an upward departure in his sentence because he qualified as a "career offender" under United States Sentencing Guidelines § 4B1.1. More specifically, Petitioner contends that a prior Pennsylvania conviction for aggravated assault cannot qualify as a "crime of violence" so as to render him a "career offender" within the meaning of the Sentencing Guidelines. Petitioner contends that under a newer methodology established in Mathis v. United States, 136 S. Ct. 2243 (2016), which was decided after Petitioner's conviction had long ago become final, his prior Pennsylvania conviction for aggravated assault no longer could qualify him as a career offender, as a matter of statutory construction.
In Mathis, the United States Supreme Court essentially held that for purposes of construing the Armed Career Criminal Act ("ACCA"), a prior conviction, does not qualify as the generic form of a predicate violent felony offense listed in the ACCA if an element of the crime of prior conviction is broader than an element of the generic offense. Essentially, Mathis defined what can qualify as a "violent felony" within the meaning of ACCA for purposes of determining whether a prior state conviction so qualifies. Mathis is pertinent here because "[p]recedent ... requires the application of case law interpreting 'violent felony' in [the] ACCA to 'crime of violence' in U.S.S.G. § 4B1.2[ ] because of the substantial similarity of the two sections." U.S. v. Brown, 765 F.3d 185, 189 n.2 (3d Cir. 2014) (quoting U.S. v. Marrero, 743 F.3d 389, 394 n.2 (3d Cir. 2014)) (internal quotation marks and citation omitted).
Although Petitioner references prior convictions for both drug possession and aggravated assault in Ground One of the Petition, the Court cannot find in Petitioner's Amended Petition and supporting Memorandum any argument with respect to his prior drug conviction not qualifying him as a career offender. Accordingly, we address that arguments that he does make, i.e., his prior Pennsylvania aggravated assault conviction cannot qualify him as a career offender under the Sentencing Guidelines.
Indeed, relying on Mathis, Petitioner contends, in effect, that he is actually innocent of the sentencing enhancements imposed upon him as a "career offender" under the version of the United States Sentencing Guidelines 4B1.1, in force at the time of his sentencing. ECF No. 43-5 at 5 - 9. Moreover, Petitioner's argument is that the "actual innocence" analysis should focus on the question of whether he was actually innocent of the predicate offense, i.e., the Pennsylvania aggravated assault conviction (which served to enhance his federal sentence) in the sense of whether those predicate offenses can truly qualify as a "crime of violence" within the contemplation of the Sentencing Guidelines and should not focus on his factual innocence of the predicate offense of aggravated assault. Id. at 5 - 6 ("The appropriate question in a collateral [challenge] to an enhancement based on prior convictions is whether an intervening change in statutory interpretation estabilshes [sic] that the predicates cannot support the enhancement. In other words, the question is whether an intervening decision establishes that the prisoner is 'innocent' of the kind of prior offense the enhancement is intended to punish so that the [federally enhanced] sentence could not have been lawfully imposed.").
We note that Petitioner's judgment of sentence was entered on August 27, 2010, which occurred long after United States v. Booker, 543 U.S. 220 (2005) was decided, which rendered the Sentencing Guidelines merely advisory.
For the reasons that follow, we find that Petitioner has failed to carry his burden to show that this Court has jurisdiction over this putative Section 2241 Amended Petition.
B. DISCUSSION
1. Section 2255 vs. Section 2241
Petitioner seeks to attack the validity of his sentence as imposed. However, 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 or attacks the sentence, as imposed, as Petitioner herein does, 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 issue, we find that Petitioner fails to carry his burden to show that a Section 2255 Motion is inadequate or ineffective to raise the challenge that he raises herein because the claim he seeks to bring, i.e., an attack on the validity of his sentence, is meritless, and, therefore, he cannot show that a Section 2255 Motion is inadequate due to his inability to raise a meritless claim via a Section 2255 Motion.
a. Petitioner's challenge to his sentence is meritless.
We understand Petitioner to be making an argument that the imposition of his enhanced sentence pursuant to the career offender designation violated the Sentencing Guidelines. We find Petitioner's challenge to be meritless based on either one of two grounds. First, we find that Petitioner cannot even establish that his sentence as imposed constituted a violation of any law of the United States, and hence, cannot show that his custody violates the law. Secondly, even if Petitioner could show that a law of the United States was in fact violated, he cannot show that such a putative violation of the law caused him any prejudice.
i. Petitioner cannot show a violation of the law.
The premise of Petitioner's challenge is that his sentence as imposed that includes the "career criminal" enhancement violates his rights under the law. Because we find the premise meritless in that his sentence does not violate any right granted to him by the law, Petitioner cannot show that a Section 2255 Motion is inadequate or ineffective to raise such a meritless challenge. In other words, Section 2255 cannot be rendered "inadequate or ineffective to test the legality of his detention" within the meaning of 28 U.S.C. § 2255(e) if a petitioner cannot establish that the challenge which he seeks to bring has merit. Cf. Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) ("counsel cannot be deemed ineffective for failing to raise a meritless claim"). A meritorious claim in this context means one deserving of habeas relief.
Because the Sentencing Guidelines were merely advisory at the time of Petitioner's sentencing, Petitioner could have, consistent with the Constitution and laws of the United States, been sentenced anywhere up to the statutory maximum for the crimes of conviction given that the Sentencing Guidelines are merely advisory now and were at the time of Petitioner's sentencing. Beckles v. U.S., 137 S. Ct. 886, 895 (2017) (post-Booker, "the Guidelines advise sentencing courts how to exercise their discretion within the bounds established by Congress. In this case, for example, the District Court did not 'enforce' the career-offender Guideline against petitioner. It enforced 18 U.S.C. § 922(g)(1)'s prohibition on possession of a firearm by a felon—which prohibited petitioner's conduct—and § 924(e)(1)'s mandate of a sentence of 15 years to life imprisonment—which fixed the permissible range of petitioner's sentence. The court relied on the career-offender Guideline merely for advice in exercising its discretion to choose a sentence within those statutory limits.").
Accordingly, we reject Petitioner's argument that his "enhanced" sentence "could not have been lawfully imposed" as the sentence that he received most certainly could have been lawfully imposed quite apart from any consideration of his status as a "career offender" within the meaning of the advisory Sentencing Guidelines. Importantly, Petitioner does not contend that he was sentenced beyond the statutory maximum for any of his crimes of conviction. Hence, we find that Petitioner has not even established that the Sentencing Guidelines were violated by him receiving the sentence that he actually received. In other words, Petitioner had no right given to him by the Sentencing Guidelines or any other law to not receive the sentence that he actually received. Accordingly, we hold that for present purposes, the Sentencing Guidelines, being merely advisory, could not have been violated by the actual sentence imposed.
We assume, without deciding, that the advisory Sentencing Guidelines constitute a "law" of the United States within the meaning of 28 U.S.C. § 2255(h). See U.S. v. Doe, 810 F.3d 132, 158 (3d Cir. 2015) ("Even if the advisory Guidelines are arguably not 'law,' there is no doubt that the mandatory Guidelines were."). We conclude, however, that Petitioner fails to establish that the law was violated by him receiving the sentence that he received given that the advisory Sentencing Guidelines "law" did not provide him a right not to be sentenced as he was.
ii. Petitioner cannot establish prejudice.
Moreover, even if Petitioner could establish that the Sentencing Guidelines were violated in some fashion, and also that some "law" of the United States was violated in the course of his sentencing, he could not show that such presumed violation of the Sentencing Guidelines resulted in prejudice to him because he cannot show that the sentencing judge would not have imposed the exact same sentence actually imposed in the absence of the career offender enhancement. Cf. Pollard v. Yost, 406 F. App'x. 635, 638 (3d Cir. 2011) ("Because it was a plea agreement that determined his sentence, we cannot be certain what it would have been absent that agreement. As we cannot determine whether he would have been sentenced to a shorter term of imprisonment had Montanez already been decided, or whether the Government would now make the same plea agreement as it did in 2002 if we remanded under a nullified plea agreement, Pollard cannot demonstrate actual innocence of his sentence, regardless whether his career offender classification was in error.").
Petitioner must show that he was prejudiced by any violation, including even a Constitutional violation, because this is a collateral proceeding and not a direct appeal. In this regard, we note that convictions and sentences that come under attack in a collateral proceeding whether under Section 2255 or under Section 2241's savings clause, come to the Court with a presumption of constitutionality and legality. U.S. v. Watson, 98 F. Supp. 3d 225, 232 (D. Mass. 2015) ("when direct review is exhausted, 'a presumption of finality and legality attaches to the conviction and sentence.' Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct. 3383, 77 L.Ed.2d 1090 (1983). Accordingly, '[t]he principle that collateral review is different from direct review resounds throughout our habeas jurisprudence.' Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S. Ct. 1710, 123 L.Ed.2d 353 (1993). 'Postconviction relief on collateral review is an extraordinary remedy, available only on a sufficient showing of fundamental unfairness.' Singleton v. United States, 26 F.3d 233, 236 (1st Cir. 1994). To meet this standard, the petitioner must clear a 'significantly higher' hurdle than he faces on direct appeal. United States v. Frady, 456 U.S. 152, 166, 102 S. Ct. 1584, 71 L.Ed.2d 816 (1982).").
See, e.g., Hall v. Warden, Lee Arrendale State Prison, 686 F. App'x 671, 687 (11th Cir. 2017) (Tjoflat, J. dissenting)(footnote omitted), wherein Judge Tjoflat explained as follows:
Moreover, as the Supreme Court stated in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the standard applicable on direct appeal does not apply on collateral review because "we are entitled to presume [the defendant] stands fairly and finally convicted." 456 U.S. at 164, 102 S.Ct. at 1592. Absent the requirement of actual prejudice, claims of trial court error would receive identical treatment on direct appeal and collateral review, obliterating any attempt to uphold the "presumption of finality and legality [that] attaches to the conviction and sentence" when the direct appeal process ends. Brecht, 507 U.S. at 633, 113 S.Ct. at 1719; see also Frady, 456 U.S. at 166-68, 102 S.Ct. at 1593-94.
To be clear, the practical effect of this presumption of legality of Petitioner's sentence in this context is that this Court presumes the sentencing judge would have imposed the exact same sentence that Petitioner received and it is Petitioner's burden to show otherwise, a burden that he utterly fails to carry herein. Indeed, under the Sentencing Guidelines, it would seem to be an almost conclusive presumption because it is simply unclear as to what evidence a petitioner could possibly provide to carry this burden, given that the sentencing judge was free to impose a sentence different from that of the advisory Sentencing Guidelines but did not.
Hence, we find that Petitioner's sentence as imposed did not violate the laws or Constitution of the United States and that, even if there had been some violation of the laws or Constitution of the United States, Petitioner cannot show prejudice from any such putative violation.
Given that Petitioner cannot establish that his rights have been violated or that, even if his rights were violated, that he suffered any prejudice from the putative violation of his rights, he cannot show that a Section 2255 Motion is inadequate or ineffective because he cannot show that the claim he seeks to bring is meritorious, i.e., deserving of habeas relief.
To be clear, we hold that as a necessary condition of showing that a Section 2255 Motion is inadequate or ineffective, Petitioner must show that the claim which he cannot now bring under a Section 2255 Motion is a meritorious claim. We emphatically do not suggest that merely establishing that a petitioner's claim is meritorious is a sufficient condition for showing a Section 2255 Motion is inadequate or ineffective, so as to permit a Petitioner to utilize a Section 2241 Petition to attack his conviction or sentence as imposed.
2. "Actual innocence" of a career offender enhancement is insufficient.
Petitioner claims actual innocence of the sentencing enhancement. As we explain, such a claim of actual innocence of a sentencing enhancement in this Circuit does not bring one within the savings clause.
The United States Court of Appeals for the Third Circuit, in the landmark case of In re Dorsainvil, 119 F.3d at 247, explained the burden that must be carried by one who seeks to establish that a Section 2255 motion is inadequate so as to permit the petitioner to utilize a Section 2241 in order to attack the validity of the conviction and/or sentence as imposed. The Third Circuit explained in Dorsainvil that, in order to show a Section 2255 motion is inadequate or ineffective so as to permit using a Section 2241 petition to attack the validity of a conviction and/or sentence as imposed, petitioners must prove both that: 1) they are actually innocent of the crime for which they were convicted and 2) they had no prior opportunity to make the showing that they are actually innocent. See Pollard v. Yost, 406 F. App'x at 637 (in order to come within the Dorsainvil exception, there 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 also Walker v. Williamson, 235 F. App'x 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)"). 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 only kind of claim of actual innocence that so establishes the inadequacy of Section 2255. 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."
Petitioner attempts to bring himself with the rule of Dorsainvil by claiming "actual innocence" of his sentence enhancement as opposed to being actually innocent of the crime for which he was convicted in federal court. However, as demonstrated below, such a claim of actual innocence of the sentence is not sufficient in the Third Circuit to come within the savings clause.
Petitioner relies upon the statutory construction case of Mathis, to claim that his prior state convictions cannot qualify him as a career offender under the Sentencing Guidelines. More specifically, Petitioner argues that his prior aggravated assault conviction in Pennsylvania cannot, under the methodology of Mathis, qualify as a predicate offense. i.e., a crime of violence, so as to qualify him as a "career offender" for a sentence enhancement under Guideline 4B1.1 and, therefore, his sentence is longer than it should otherwise be under the Sentencing Guidelines.
As noted earlier, Petitioner is arguing that he is "actually innocent" of the sentencing enhancement of being a career offender under the Sentencing Guidelines and he contends that this should be sufficient to enable him to bring a Section 2241 habeas Petition because he is not able to raise this contention in a Section 2255 motion. We note that because Mathis is a statutory construction case and not a constitutionally based decision, Petitioner cannot bring a second or successive Section 2255 motion to raise his Mathis claim. McCoy v. True, 17-CV-00657-DRH-CJP, 2018 WL 401184, at *2 (S.D. Ill. Jan. 12, 2018) ("Mathis is a statutory construction case that determined what constitutes a 'violent felony' for purposes of a sentence enhancement under the Armed Career Criminal Act (18 U.S.C.A. § 924(e))."); Zoch v. U.S., C16-4066-LTS, 2017 WL 6816543, at *5 (N.D. Iowa Sept. 22, 2017) ("Mathis did not announce a new rule that is retroactively applicable to cases on collateral review.").
However, we disagree that his inability to raise this Mathis claim renders Section 2255 Motion inadequate or ineffective so that he may avail himself of the savings clause of Section 2241 and bring a Section 2241 petition attacking his conviction and/or sentence as imposed. The clear rule in this Circuit is that claims of actual innocence of a sentence (other than, perhaps, a capital sentence), as opposed to claims of actual innocence of the crime(s) of conviction are simply not properly raised in a Section 2241 petition and do not fall within the narrow Dorsainvil exception which would permit the use of a Section 2241 petition to challenge the conviction and/or sentence as imposed and neither should Courts recognize an exception in addition to the Dorsainvil exception for such a claim of actual innocence of the sentence. See, e.g., McIntosh v. Shartle, 526 F. App'x 150, 152 (3d Cir. 2013) ("In Dorsainvil, we held that a defendant may proceed via § 2241 when a subsequent statutory interpretation renders the defendant's conduct no longer criminal. Id. at 251. Here, McIntosh is challenging his designation as a career offender. Thus, he does not fall within the exception created in Dorsainvil and may not proceed under § 2241."); United States v. Kenney, 391 F. App'x 169 (3d Cir. 2010); Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002).
As the United States Court of Appeals for the Third Circuit cogently explained in United States v. Kenney:
Even assuming, arguendo, that § 2255 is "inadequate or ineffective to test the legality of his detention," Kenney's motion is still insufficient under § 2241. § 2255; see also Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002). In Dorsainvil we held that § 2241 can be used to challenge a conviction for a crime that was negated by an intervening change in the law. 119 F.3d at 249. But such relief is available only in "rare situations" where the crime of conviction was later deemed non-criminal. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). Section 2241 is not available for intervening changes in the sentencing law. Id. For example, we did not allow Okereke to proceed under § 2241 because his argument was based on "Apprendi [which] dealt with sentencing and did not render ... the crime for which Okereke was convicted, not criminal." Id. at 120.Kenney, 391 F. App'x at 172. See also Gardner Warden, Lewisburg USP, 845 F.3d 99, 102 (3d Cir. 2017) (in a case where a mandatory minimum sentence was imposed on the Section 2241 petitioner under the then mandatory Sentencing Guidelines, where a judge and not a jury found the facts necessary to impose the mandatory minimum sentence, all of which was subsequently found to have violated the Constitution under Alleyne, the Court of Appeals held that "Alleyne extended the logic of Apprendi to facts affecting mandatory minimums for criminal sentences. Alleyne, 133 S. Ct. at 2155. Both cases regulate sentencing procedure and neither makes previously criminal conduct noncriminal. For the same reason that Okereke held Apprendi claims could not be raised in § 2241 motions—Apprendi did not render previously criminal conduct noncriminal, Okereke, 307 F.3d at 120—we likewise hold that Alleyne claims cannot be raised under § 2241."). The Court in Gardner concluded that the District Court was without jurisdiction to consider the Section 2241 petition. Id. at 104 ("For the reasons stated, we will affirm the District Court's order denying Gardner's § 2241 habeas petition for lack of jurisdiction.").
We find that, if a Section 2241 Petition cannot be used to challenge an unconstitutional mandatory minimum sentence imposed under the then mandatory Sentencing Guidelines as was held in Gardner, then Petitioner herein cannot use a Section 2241 to challenge an alleged sentence enhancement under the advisory Sentencing Guidelines that, at most, would violate a statutory definition of a predicate crime of violence. We further find that the holding in Gardner firmly puts to rest the speculation in dictum by the Court in Doe that a Section 2241 petition might be available to challenge any such sentence enhancement. U.S. v. Doe, 810 F.3d 132, 160 (3d Cir. 2015) (noting that it is an open question in this Circuit whether the federal prisoner therein may be able to use Section 2241 to challenge a sentence enhancement).
Accordingly, we find that Petitioner's claim of actual innocence of the sentencing enhancement of being a career offender under the advisory Sentencing Guidelines does not permit him to proceed by way of a Section 2241 Petition. Petitioner has not established that a Section 2255 motion is inadequate or ineffective so as to permit him to bring a Section 2241 petition in order to attack his sentence as imposed. Petitioner clearly does not come within the Dorsainvil exception and the United States Court of Appeals has refused to recognize an exception in addition to the Dorsainvil exception in circumstances such as this, where a federal prisoner seeks to challenge a sentence enhancement.
3. The Memorandum of Law filed at ECF No. 41-1.
In one of Petitioner's many filings with this Court, Petitioner filed a document entitled "Petitioner's Memorandum of Law in Support of his (Consolidated) Amended Section 2241 Petition upon this Honorable Court's Request," ECF No. 41-1, wherein he raises some claims that he does not raise in the Amended Petition. Because Petitioner entitles his Memorandum of Law which he filed at ECF No. 44 as a "Supplemental Memorandum of Law..." we understand Petitioner to still be raising claims that were mentioned only in the document filed at ECF No. 41-1, and so we will address those claims only briefly. The first and foremost problem (among several) with Petitioner's claims raised in the document filed at ECF No. 41-1 is that he still fails to carry his burden to show that Section 2255 was inadequate or ineffective. All of Petitioner's claims, including those raised in ECF No. 41-1, essentially attack the "career offender" enhancement in his sentencing but, as explained above, such claims attacking the validity of the sentence, as imposed, do not come within the savings clause exception in this Circuit. Moreover, in ECF No. 41-1, Petitioner relies primarily on Johnson v. United States, 135 S. Ct. 2551 (2015) (finding ACCA's residual clause concerning "career offenders" unconstitutionally vague) and Welch v. United States, 136 S. Ct. 1257 (2016) (finding Johnson to apply retroactively). However, those cases simply do not apply to Petitioner's situation, which involves the advisory Sentencing Guidelines and not ACCA or the mandatory Sentencing Guidelines. See, e.g., Ramirez v. Maiorana, 3:CV-15-1871, 2017 WL 4418422, at *3 (M.D. Pa. Oct. 5, 2017) wherein the Court held that:
Next, Mr. Ramirez argues that he is "actually innocent" of being categorized as a career offender under U.S.S.G. § 4B1.1. He claims the holdings in Johnson and Welch apply retroactively to cases under collateral review "involving either ACCA or 'a' Guidelines Provision Implicating similar residual clause. In which in the instant case is referring to defendants 4b.1 enhancement, in which is considered no longer applicable under current law, and is considered unconstitutionally vague under the ruling of Johnson". (ECF No. 9, pp. 1-2.) Mr. Ramirez previously tried, unsuccessfully, to make the identical challenge in his application to file a successive collateral attack. His reliance on Johnson and Welch is misplaced as those ruling[s] involved the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), and not the federal sentencing guidelines. The Supreme Court recently held that the residual clause in U.S.S.G. 4B1.2(a) was not subject to a vagueness challenge, distinguishing the situation where a sentence was based on the advisory guidelines from a sentence imposed under the
residual clause of the ACCA statute. Beckles v. United States, — U.S. —, 137 S. Ct. 886, 197 L.Ed.2d 145 (2017) (distinguishing Johnson). Moreover, sentencing enhancement challenges are insufficient to invoke § 2241. The law is clear that such claims must be brought in a motion under 28 U.S.C. § 2255, unless that section would be "inadequate or ineffective" to raise the claims. See Okereke, 307 F.3d at 120. Just because a petitioner cannot meet the stringent requirements of § 2255 does not make this section inadequate or ineffective. Gardner v. Warden Lewisburg USP, 845 F.3d 99, 102 (3d Cir. 2017) ("issues that might arise during sentencing [do] not make § 2255 inadequate or ineffective"). Petitioner has pointed to no reason why § 2255 would be inadequate or ineffective to raise the instant challenges to his sentence.Ramirez v. Maiorana, 3:CV-15-1871, 2017 WL 4418422, at *3 (M.D. Pa. Oct. 5, 2017). Accord Johnson v. Ebbert, 1:18-CV-0102, 2018 WL 1878466, at *2-3 (M.D. Pa. Apr. 19, 2018) ("The Third Circuit Court of Appeals has not extended the limited Dorsainvil exception to include situations where a prisoner is challenging a sentence enhancement based on an intervening change in substantive law."). What the Courts in Ramirez and Ebbert held applies equally here.
Nothing raised by Petitioner in ECF No. 41-1 persuades us that Petitioner ought to be permitted to utilize a Section 2241 Petition herein.
4. Dismissal for lack of subject matter jurisdiction.
The last issue to be addressed is the issue of the basis upon which we recommend dismissal of the putative Section 2241 petition.
As noted above, a federal prisoner attacking the validity of his conviction and/or sentence as imposed essentially has only two procedural vehicles by which to do so: 1) a Section 2255 Motion or 2) a Section 2241 habeas petition via the savings clause. However, the two devices are not equally available to a federal prisoner. As courts have repeatedly held a Section 2255 Motion is the "presumptive" or "default" procedural vehicle by which a federal prisoner may attack his conviction and/or sentence as imposed. Okereke v. U.S., 307 F.3d at 120 ("Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution."). Accord Snow v. Bledsoe, 512 F. App'x 149, 150-51 (3d Cir. 2013) ("The District Court properly dismissed Snow's section 2241 petition for lack of jurisdiction. A motion filed under section 2255 in the sentencing court is the presumptive means for a federal prisoner to challenge the validity of a conviction or sentence. By contrast, section 2241 'confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.' Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001) (noting that challenges to the execution of a sentence include, e.g., challenges to wrongful revocation of parole, place of imprisonment, and credit for time served) (internal citations omitted). We agree with the District Court that Snow's claims are actually an attack on the validity of his sentence and, as such, must be brought pursuant to section 2255.") (some citations omitted); Thomas v. Smith, 179 F. App'x 865, 865 (3d Cir. 2006) ("A § 2255 motion filed in the sentencing court is the presumptive means for a federal prisoner to challenge to his sentence."); Alexander v. Williamson, 324 F. App'x 149, 151 (3d Cir. 2009) ("A motion pursuant to § 2255 is the presumptive means by which a federal prisoner can contest his conviction or sentence, for a court cannot entertain a § 2241 petition unless a § 2255 motion would be 'inadequate or ineffective to test the legality of his detention.'"); Royal v. U.S., 357 F. App'x 402, 403 (3d Cir. 2009) ("A motion to vacate a sentence pursuant to 28 U.S.C. § 2255 is the presumptive means to collaterally challenge a federal conviction or sentence. Under the explicit terms of 28 U.S.C. § 2255, a habeas corpus petition cannot be entertained by a court unless a section 2255 motion would be 'inadequate or ineffective.'").
Given that a Section 2255 motion is the presumptive or default method by which federal convicts can challenge their convictions or sentences as imposed, and given, as we concluded above, that Petitioner has failed to show that Section 2255 is inadequate or ineffective, which is a necessary condition precedent to permit him to use a Section 2241 Petition to attack his conviction or sentence as imposed, Petitioner has failed to carry his burden herein to come within the savings clause. Accordingly, the present petition, which attacks Petitioner's sentence as imposed is presumptively a Section 2255 Motion. Pierre-Louis v. Warden Canaan USP, 578 F. App'x 61, 63 (3d Cir. 2014) ("We agree with the District Court that Pierre-Louis's claims are actually an attack on the validity of his sentence and, as such, must presumptively be brought pursuant to § 2255 in the sentencing court."). Furthermore, given that Petitioner failed to carry his burden to show that Section 2255 Motion is inadequate or ineffective, then it follows that this proceeding is not only a presumptive Section 2255 motion but because the presumption that a proceeding attacking a sentence as imposed constitutes a Section 2255 Motion has been unrebutted by Petitioner, the presumptive becomes the conclusive, and, therefore, the present proceeding must be treated as what it conclusively is, in law and in fact, i.e., a Section 2255 Motion.
Adderly v. Zickefoose, 459 F. App'x 73, 75 (3d Cir. 2012) ("A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive means to collaterally challenge a federal conviction or sentence.").
Given that Petitioner has previously filed at least two Section 2255 Motions, U.S.A. v. Cleckley, 2:09-cr-246 (W.D. Pa.) (ECF No. 51 and ECF No. 64), and the first Motion was denied on the merits, id. (Feb. 14, 2012) ECF No. 63, and the second Section 2255 Motion was dismissed as being second or successive, id. (Feb. 27, 2012) ECF No. 66, this case at bar constitutes a second or successive Section 2255 Motion over which this Court lacks subject matter jurisdiction, and hence, it must be dismissed as such. Pelullo v. U.S., 352 F. App'x 620, 625 (3d Cir. 2009) ("To the extent that he collaterally attacked his reinstated conviction and sentence under Rule 60(b), the motion is a 'second or successive' § 2255 motion. Absent our prior authorization, the District Court lacked jurisdiction to consider the successive § 2255 motion.") (citations omitted); Garcia v. Grondolsky, 350 F. App'x 616, 617-18 (3d Cir. 2009) ("Therefore, the District Court properly determined that it lacked jurisdiction under § 2241 to hear Garcia's claim. Further, the District Court also correctly construed his petition as a second or successive § 2255 motion and held that it also lacked jurisdiction over such a motion.").
See also 16A Fed. Proc., L. Ed. § 41:132 which notes that
When a federal prisoner has already had a 28 U.S.C.A. § 2255 motion to vacate, set aside, or correct a sentence dismissed on the merits, a district court faced with a 28 U.S.C.A. § 2241 habeas petition raising previously available claims that were properly the subject of a 28 U.S.C.A. § 2255 motion can either treat the 28 U.S.C.A. § 2241 petition as a second or successive 28 U.S.C.A. § 2255 petition and refer the petition to court of appeals for certification, or, if it is plain from the petition that the prisoner cannot demonstrate that a remedy under 28 U.S.C.A. § 2255 would be inadequate or ineffective to test the legality of his detention, the district court may dismiss the 28 U.S.C.A. § 2241 petition for lack of jurisdiction.
Because we conclude that the present presumptive Section 2255 Motion is conclusively a Section 2255 Motion and, furthermore, is second or successive, the present proceeding must be dismissed for lack of subject matter jurisdiction. Our conclusion that the present proceeding is conclusively a Section 2255 Motion, requires us to make a determination regarding a Certificate of Appealability. See, e.g., U.S. v. McKeithan, 437 F. App'x 148, 150 (3d Cir. 2011) (in a case where Petitioner ostensibly filed a Section 2241 petition, the Court opined that the District Court properly dismissed the petition and the Court of Appeals noted that "[b]ecause McKeithan previously filed a § 2255 motion that was denied on the merits, he must first obtain leave from this Court in order to file a second § 2255 motion.").
Given that we conclude reasonable jurists would not find the foregoing debatable or, in other words, given that we find no debatable constitutional question regarding an allegedly incorrect designation as a career offender under the advisory Sentencing Guidelines, we recommend the denial of a Certificate of Appealability.
It has been noted that an erroneously enhanced sentence under the Guidelines is analogous to a sentence based on materially false information, which is an accepted substantive due process claim, see Doe, 810 F.3d at 156 (citing Narvaez v. United States, 674 F.3d 621 (2011)). Even if the analogy is persuasive and retains its viability under an advisory Sentencing Guidelines regime, the Court would still conclude that there is not a debatable constitutional question presented by this case. The reason is that a substantive due process violation in the context of habeas proceedings requires a showing of prejudice. Tokarcik v. Burns, CIV.A. 12-253J, 2015 WL 3480333, at *5 (W.D. Pa. May 29, 2015) ("it is doubtful that Petitioner could successfully demonstrate a violation of his substantive due process rights here which would require him to show that he suffered prejudice from the alleged error in his guilty plea proceedings. He does not appear to be able to establish prejudice herein"). See also Chhay v. Mukasey, 540 F.3d 1, 8 (1st Cir. 2008) ("A complaining party must show prejudice in order to demonstrate a cognizable violation of due process. In this context, prejudice equates with a showing that 'an abridgement of due process is likely to have affected the outcome of the proceedings.'") (citations omitted). For the reasons explained above that Petitioner cannot show prejudice in establishing a meritorious claim, he cannot show prejudice to establish a substantive due process violation either.
We are aware that the United States Court of Appeals for the Third Circuit has stated that a Certificate of Appealability is not needed for federal prisoners who bring Section 2241 petitions. See, e.g., U.S. v. Cepero, 224 F.3d 256, 264 -265 (3d Cir. 2000), abrogated on other grounds by, Gonzalez v. Thaler, 132 S.Ct. 641 (2012). See also Hatten v. U.S., 345 F. App'x 844, 845 (3d Cir. 2009) ("A COA is not required to appeal from the denial of Hatten's § 2241 petition."). This is another area of the savings clause jurisprudence that could use clarification. We find those cases stating that a COA is not needed in Section 2241 cases distinguishable because none of those cases apparently confronted directly the holding of today that the putative Section 2241 Petition is, in fact and in law, a Section 2255 Motion and not a Section 2241 petition, and, therefore, requires a certificate of appealability. --------
III. CONCLUSION
For the reasons set forth herein, the Petition should dismissed for lack of subject matter jurisdiction as a second or successive Section 2255 Motion and a Certificate of Appealability should be denied.
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. Dated: August 13, 2018
Respectfully submitted,
/s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE cc: The Honorable Nora Barry Fischer
United States District Judge
FREDDIE CLECKLEY
30583-068
FCI MCDOWELL
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