Opinion
Case No. 3:19-cv-121-KRG-KAP Case No. 3:19-cv-156-KRG-KAP
10-07-2019
WILLIE G. GULLEY, JR., Petitioner, v. MICHAEL SMITH, WARDEN, CAMBRIA COUNTY PRISON, Respondent
Order, and Report and Recommendation
Order
Petitioner is confined at the Cambria County Prison, awaiting trial on federal controlled substances charges at United States v. Gulley, Case No. 3:18-cr-9-KRG-KAP (W.D.Pa.). On August 2, 2019, petitioner filed a petition for a writ of habeas corpus at Gulley v. Smith, Case No. 3:19-cv-121-KRG-KAP (W.D.Pa.). without the filing fee or a motion to proceed in forma pauperis accompanied by an inmate account statement as required by the Prison Litigation Reform Act. On October 4, 2019, petitioner filed a second petition for a writ of habeas corpus at Gulley v. Smith, Case No. 3:19-cv-156-KRG-KAP (W.D.Pa.), again without the filing fee or valid motion to proceed in forma pauperis.
Petitioner, however, refers in the body of his petitions to having filed motions to proceed in forma pauperis, and it is probably the case that petitioner is assuming that his previous motions, including the one I granted in his current criminal prosecution, carry over to these cases. I grant petitioner leave to proceed in forma pauperis.
Recommendation
I recommend that the petitions be summarily dismissed without service. See 28 U.S.C.§ 2243.
Report
Petitioner's pleadings are not at all clear, but it appears that both petitions make the same claim, namely that he was not resentenced properly in United States v. Gulley, Case No. 3:05-cr-16-KRG-KAP (W.D.Pa.). In that case, petitioner was originally sentenced on December 12, 2006, to a term of 151 months imprisonment followed by 5 years supervised release. Petitioner was resentenced on September 8, 2008; the Court reduced petitioner's term of imprisonment to 121 months as a result of a motion under 18 U.S.C.S 3582(c)(2) seeking retroactive application of Amendment 706 to the United States Sentencing Guidelines, that had the effect of changing the drug quantity tables at Guideline §2D1.1. Petitioner was resentenced a second time on May 14, 2012, as a result of a motion seeking application of Amendment 750 that retroactively applied the Fair Sentencing Act of 2010. Petitioner's term of imprisonment was reduced to 120 months.
Petitioner was released from the term of imprisonment imposed in United States v. Gulley, Case No. 3:05-cr-16-KRG-KAP (W.D.Pa.) in 2013. He subsequently was prosecuted for committing new controlled substance offenses at United States v. Gulley, Case No. 3:15-cr-13-KRG-KAP (W.D.Pa.) and on September 4, 2015, received a new sentence on those charges of 36 months imprisonment followed by 3 years of supervised release. Upon his release from the imprisonment term in that matter, petitioner was again arrested for new controlled substance offenses. I have ordered him detained under the Bail Reform Act pending trial in United States v. Gulley, Case No. 3:15-cr-13-KRG-KAP (W.D.Pa.).
Petitioner's petitions assert, in a completely conclusory fashion, that subsequent changes in the law should have further reduced his sentence in United States v. Gulley, Case No. 3:05-cr-16-KRG-KAP (W.D.Pa.) to 60 months imprisonment and 3 years supervised release. By his calculations he is getting no credit for what he believes is 4 years and 9 months of "overserving" his sentence. Although petitioner does not mention it by name it is safe to assume that by subsequent changes in the law he means the First Step Act of 2018, Pub. L. No. 115-391, § 401. The FSA would not apply to petitioner because his sentence was imposed before the effective date of the statute. United States v. Aviles, No. 18-2967, 2019 WL 4309665, at *3 (3d Cir. Sept. 12, 2019). It is also possible that petitioner simply intends to advance again the argument rejected (without appeal) by the court in 2012 that the court should depart below the applicable mandatory minimum term of 120 months imprisonment.
But this court need not seek clarification of petitioner's claim, much less reach its merits. Habeas corpus works by affecting custody simpliciter and not, legally speaking, by reviewing a judgment. Coleman v. Thompson, 501 U.S. 722, 730 (1991), citing and overruling on other grounds Fay v. Noia, 372 U.S. 391, 430 (1963). Petitioner's custody is not due to his sentence in United States v. Gulley, Case No. 3:05-cr-16-KRG-KAP (W.D.Pa.), and his release would not be effected (or his release date affected) by any hypothetical resentencing in that case. Petitioner's custody is due to the new charges at United States v. Gulley, Case No. 3:18-cr-9-KRG-KAP (W.D.Pa.).
Article III, Section 2 of the Constitution limits the jurisdiction of the federal courts to cases or controversies, which requires the petitioner to have standing to sue. The three elements of standing a petitioner must allege in a habeas corpus petition are that he has suffered a legally cognizable injury (he is "in custody"), that the injury is fairly traceable to the respondent's conduct (the warden is unlawfully holding him), and that the injury is "likely to be redressed by the requested relief." Raines v. Byrd, 521 U.S. 811, 818-19 (1997) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)), in other words that he would be released (or released sooner) from custody. Because petitioner, assuming he is in custody in United States v. Gulley, Case No. 3:05-cr-16-KRG-KAP (W.D.Pa.), would not be released from custody even if he were to be resentenced yet again in United States v. Gulley, Case No. 3:05-cr-16-KRG-KAP (W.D.Pa.) to a term of zero months imprisonment, petitioner cannot satisfy this third element of standing.
If any one of petitioner's several previous sentences should have an effect on his custody, petitioner has other avenues to raise any legal claim. If he seeks pretrial release in United States v. Gulley, Case No. 3:18-cr-9-KRG-KAP (W.D.Pa.), his counsel in that case can file a motion under the Bail Reform Act. If petitioner is eventually convicted on his new charges, at sentencing he can make whatever argument is appropriate based on his theory that his prior sentence should have been lower. See e.g. United States Sentencing Guideline §4A1.3(b)(1). But he cannot litigate his theory about overserving his previous sentence in a habeas petition.
Pursuant to 28 U.S.C.§ 636(b)(1), the petitioner is given notice that he has fourteen days to file written objections to this Report and Recommendation. DATE: 7 October 2019
/s/_________
Keith A. Pesto,
United States Magistrate Judge Notice by U.S. Mail to:
Willie Gulley #18-0722
Cambria County Prison
425 Manor Drive
Ebensburg, PA 15931