Opinion
CIVIL ACTION NO. 1:18-CV-0500
11-01-2019
DELBERT MCGEE, Petitioner v. DAVID EBBERT, WARDEN, Respondent
(CONNER, C.J.) ()
REPORT & RECOMMENDATION
I. INTRODUCTION
Delbert McGee ("Petitioner"), a federal inmate at USP Lewisburg, filed a habeas corpus petition under 28 U.S.C. § 2241, challenging the calculation of his federal sentence. Petitioner argues that he should not have been classified as a career offender under the Armed Career Criminal Act. For the reasons explained below, I recommend that this Petition (Doc. 1) be DISMISSED. II. FACTS AND PROCEDURAL HISTORY
On December 6, 2010, pursuant to a plea agreement, Petitioner pled guilty to a charge of felon in possession of a firearm in the United States District Court for the Central District of Illinois. (Doc. 1, p. 1; Doc. 1-1, p. 2). At the time of sentencing, based on Petitioner's past criminal history, Petitioner qualified for a statutorily enhanced sentence under the Armed Career Criminal Act ("ACCA"). (Doc. 1-1, p. 2). Petitioner's guideline range was increased from a range of 0 months to 120 months to a range of 180 months to life imprisonment. Id. Petitioner was sentenced to 188 months imprisonment. Id. Petitioner did not appeal his conviction or sentence. Id.
In October 2012, Petitioner filed a § 2255 motion, challenging his career offender status. Id. at p. 2-3. The sentencing court denied Petitioner's motion. Id.
In June 2014, Petitioner filed an application with the Seventh Circuit Court of Appeals seeking permission to file a second § 2255 motion. Id. at p. 3. Petitioner argued that the Supreme Court's ruling in Descamps v. United States invalidated his career offender status. Id. The Seventh Circuit denied Petitioner's application. Id.
Descamps v. United States, 570 U.S. 254 (2013).
In May 2016, Petitioner again filed an application seeking permission to file a second § 2255 motion. Id. In this application, Petitioner argued that under Johnson v. United States , his career offender status was unconstitutional as his prior Illinois burglary convictions were not predicate offenses under the ACCA. Id. The Seventh Circuit denied the application. Id.
Johnson v. United States, 135 S. Ct. 2551 (2015).
In January 2017, Petitioner filed another application seeking permission to file a second § 2255 motion. Id. Petitioner based this application on the Supreme Court's decision in Mathis v. United States, Johnson v. United States, and Welch v. United States. Id. The Seventh Circuit again denied his application. Id.
Mathis v. United States, 136 S.Ct. 2243 (2016); Johnson v. United States, 135 S. Ct. 2551 (2015); Welch v. United States, 136 S.Ct. 1257 (2016).
On March 1, 2018, Petitioner filed a Petition for Writ of Habeas Corpus (Doc. 1). Petitioner challenges his sentence as unconstitutional, arguing that he should not have been deemed a career offender under the ACCA. Petitioner argues that he is entitled to relief under Section 2241, because Section 2255 is inadequate and ineffective to address his claims.
On August 31, 2018, Respondent filed a Response to the Petition for Habeas Corpus (Doc. 9). On September 14, 2018, Petitioner filed a Traverse (Doc. 10). III. DISCUSSION
Under Section 2241, a federal prisoner may challenge the execution of his sentence—such as a claim concerning the denial or revocation of parole, or the loss of good-time credits—in the district court for the federal judicial district where the prisoner is in custody. See 28 U.S.C. § 2241(a); Rumsfeld v. Padilla, 542 U.S. 426, 443-44 (2004); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).
To challenge the validity of his sentence, however, a federal prisoner must instead file a § 2255 motion in the sentencing court, "a court already familiar with the facts of the case." See Boumediene v. Bush, 553 U.S. 723, 774-75 (2008); see also Swain v. Pressley, 430 U.S. 372, 378 (1977) ("[Section] 2255 created a new postconviction remedy in the sentencing court and provided that a habeas corpus petition may not be entertained elsewhere."); Brown v. Mendez, 167 F. Supp. 2d 723, 726 (M.D. Pa. 2001) ("As a general rule, a § 2255 motion 'supersedes habeas corpus and provides the exclusive remedy' to one in custody pursuant to a federal court conviction.") (quoting Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972) (per curiam)). "Only if it is shown that a § 2255 motion 'is inadequate or ineffective to test the legality of . . . detention,' may a federal inmate resort to § 2241 to challenge the validity of the conviction or sentence." Brown, 167 F. Supp. 2d at 726; see also 28 U.S.C. § 2255(e); Litterio v. Parker, 369 F.2d 395, 395 (3d Cir. 1966) (per curiam) ("It is firmly established that the remedy available to a federal prisoner under 2255 is exclusive in the absence of a showing that such remedy 'is inadequate or ineffective to test the legality of (the prisoner's) detention.'").
In the instant petition, Petitioner challenges the imposition of his sentence, not its execution. To proceed under § 2241, he must demonstrate that a Section 2255 motion "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). "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.'" Sliney v. Purdue, No. 1:15-cv-1410, 2015 WL 6690212, *1 (M.D. Pa. 2015) (quoting In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). The petitioner has the burden of proving that the remedy afforded by Section 2255 is inadequate or ineffective. Brown v. Mendez, 167 F. Supp. 2d 723, 726 (M.D. Pa. 2001). "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) (citations omitted). "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) (concluding "Section 2255 has made the sentencing court the exclusive forum for challenge to the validity of a conviction and sentence.")).
The Third Circuit has consistently held that the challenges of federal inmates attacking sentence enhancements cannot be raised by means of a Section 2241 petition and a district court does not have Section 2241 jurisdiction to reexamine the decision of the federal sentencing court. See, e.g., Mikell v. Recktenwald, 545 Fed.Appx. 82 (3d Cir. 2013) (concluding that the petitioner made no allegation that he was actually innocent of the drug crime for which he was convicted and, instead, merely asserted that he was innocent of being a career offender and his sentence was improper, meaning relief under Section 2241 was unavailable); Rhines v. Holt, 434 Fed.App. 67 (3d Cir. 2011) (affirming dismissal of a Section 2241 petition for lack of jurisdiction where the petitioner argues that he was innocent of the sentencing enhancement applied to him); Sorrell v. Bledsoe, 437 Fed.Appx. 94 (3d Cir. 2011) (concluding that the exception created in Dorsainvill does not apply where the claim is that the prisoner's sentence was improperly calculated).
Petitioner asserts that he was improperly sentenced as a career offender under the ACCA. However, Petitioner does not allege that an intervening change in the law has rendered his criminal actions to be non-criminal. Instead, Petitioner argues that the sentencing court erroneously adopted his prior state law convictions as predicate offenses under the ACCA.
Further, Petitioner has not cited to any authority that a new rule of law retroactively applicable to cases on collateral review exists. No authority appears to exist. Petitioner has not demonstrated that Section 2255 is inadequate or ineffective. Petitioner's sentencing claim is not the type of claim that a federal prisoner can bring by way of a Section 2241 petition. Petitioner's career offender status and sentence can only be challenged through a Section 2255 petition. This Court does not have jurisdiction over Petitioner's Section 2255 petition as we were not the sentencing court. Thus, his Petition should be dismissed for lack of jurisdiction.
[The next page contains the recommendation.]
IV. RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that Petitioner's Petition for a Writ of Habeas Corpus (Doc. 1) be DISMISSED. Date: November 1, 2019
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3 which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.Date: November 1, 2019
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge