Opinion
1:22-cv-70
04-28-2023
PHILLIP A. MIKLE, Sr., Petitioner v. WARDEN HUTCHINSON, Respondent
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus filed by federal prisoner Phillip A. Mikle (Petitioner) pursuant to 28 U.S.C. § 2241 be dismissed for lack of jurisdiction.
At the time that he filed his petition, Petitioner was 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.
II. Report
A. Background
On March 7, 2013, a jury in the United States District Court for the Southern District of Florida (the “sentencing court”) convicted Petitioner of possession with intent to distribute cocaine and cocaine base. U.S. v. Mikle, 582 Fed.Appx. 855 (11th Cir. 2014). On March 5, - 2014, the sentencing court sentenced Petitioner to a term of incarceration of 240 months followed by three years of supervised release. United States v. Mikle, 2021 WL 2882010, at *1 (S.D. Fla. July 9, 2021). The Court of Appeals for the Eleventh Circuit affirmed his conviction and sentence on direct appeal on January 14, 2015. Mikle, 582 Fed. App. 855.
Over the next few years, Petitioner filed a host of Motions to Reduce Sentence and Motions to Vacate Under § 2255 in the sentencing court. See ECF No. 12 at 3-5 (recounting Petitioner's attempts to vacate or reduce his sentence). None was successful. Id.
On August 21, 2020, Petitioner filed a motion in the sentencing court seeking compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) due to the COVID-19 pandemic. See Mikle, 2021 WL 2882010, at *1. The sentencing court denied that motion on September 30, 2020. Id.
Shortly thereafter, Petitioner initiated this habeas action pursuant to § 2241. ECF No. 1. Petitioner filed an amended petition on September 23, 2022. ECF No. 19. He raises the following claims, each of which asserts his actual innocence of the underlying crime: 1) the government knowingly and intentionally falsified charges in his indictment; 2) the government “unlawfully applied Petitioner's allege small drug amount (1.4 gms crack cocaine and 0.8 gm cocaine powder) to serve as another felony offense for the 924(c) in petitioner indictment”; 3) the evidence at trial was insufficient to support his conviction; and 4) the evidence at trial was contradictory and inconsistent. Id. Petitioner also appears to attack the validity of his sentence based on the allegedly unlawful application of a sentencing enhancement. Id. at 13-14. In response, Respondent maintains that Petitioner's petition must be dismissed for lack of jurisdiction. ECF No. 26. This matter is fully briefed and ripe for disposition.
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
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).
Section 2241 petitions must be filed in the district in which the prisoner is incarcerated because:
[t]he prisoner must direct his [§ 2241] petition to “the person who has custody over him.” § 2242; see also Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Longstanding practice under this immediate custodian rule “confirms that in habeas challenges to present physical confinement...the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). And under the statute's jurisdiction of confinement rule, district courts may only grant habeas relief against custodians “within their respective jurisdictions.” § 2241(a); see also Braden, 410 U.S. at 495, 93 S.Ct. 1123 (“[T]he language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian”).Bruce, 868 F.3d at 178.
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.3dat 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).
Petitioner's claims in the instant § 2241 action do not fall into either of these categories. Instead, he argues that he is actually innocent of his crime of conviction based on errors that allegedly occurred prior to and during his trial. 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 Petitioner'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 only recognized 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 § 2 255 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 its recent decision 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 § 225 5 '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's claims fail for several reasons. Initially, because Petitioner does not allege that he is “being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision and [Third Circuit] precedent construing an intervening Supreme Court decision,” he cannot satisfy the first Bruce condition. Bruce, 868 F.3d at 180. A review of his petition reveals that he is attacking the validity of his conviction based on alleged errors and misconduct that occurred during his criminal proceedings rather than because the conduct underlying his conviction has been decriminalized by a subsequent decision from the United States Supreme Court. See, e.g., United States v. Brown, 456 Fed.Appx. 79, 81 (3d Cir. 2012) (“We have held that § 2255's ‘safety valve' applies only in rare circumstances, such as when an intervening change in the statute under which the petitioner was convicted renders the petitioner's conduct non-criminal.”). This threshold deficiency is fatal to each of his claims.
Secondly, to the extent that Petitioner is contesting the sentencing court's determination that he was a career offender, see ECF No. 19 at 13-14, Petitioner is plainly challenging a sentencing enhancement rather than claiming that he was convicted of conduct that was subsequently decriminalized by a change in the law - that is, that he is now retroactively innocent of the underlying drug violations. Although the Third Circuit has yet to address the issue in a precedential opinion, courts in this Circuit, including the Court of Appeals, have repeatedly held that district courts lack jurisdiction to consider such claims under § 2241. See, e.g., Scott v. Shartle, 574 Fed.Appx. 152, 155 (3d Cir. 2014) (“[B]ecause [petitioner] is challenging his career offender designation and is not claiming that he is now innocent of the predicate offense, he does not fall within the ‘safety valve' exception created in In re Dorsainvil and cannot proceed under § 2241.”) (citing Okereke v. United States, 307 F.3d 117, 120-21 (3d Cir. 2002)); United States v. Brown, 456 Fed.Appx. 79, 81 (3d Cir. 2012) (“We have held that § 2255's ‘safety valve' applies only in rare circumstances, such as when an intervening change in the statute under which the petitioner was convicted renders the petitioner's conduct noncriminal. [Petitioner] has not satisfied that standard here, as he makes no allegation that he is actually innocent of the crime for which he was convicted, but instead asserts only that he is ‘innocent' of [a sentencing enhancement].”); McGee v. Ebbert, 2019 WL 6339898, at *2 (M.D. Pa. Nov. 1, 2019) (“The Third Circuit has consistently held that the challenges of federal inmates attacking sentencing enhancements cannot be raised by means of a Section 2241 petition and a district court does not have Section 2241 jurisdiction to reexamine the decisions of the federal sentencing court.”) (collecting cases). Petitioner's challenge to the applicability of a sentencing enhancement simply does not fall within § 2255's savings clause, depriving this Court of jurisdiction to consider his claim.
Finally, the Court notes that Petitioner has already filed a direct appeal and several § 2255 petitions asserting at least some of the same issues raised in the instant § 2241 motion. See Mikle v. United States, Case No. 15-61094-Civ-Seitz, D.E. 38 (S.D. Fla. Sept. 5, 2019); Mikle v. United States, Case No. 16-22565-Civ-Lenard, D.E. 10 (S.D. Fla. Sept. 6, 2016); Mikle v. United States, Case No. 17-22175-Civ-Lenard, D.E. 7 (S.D. Fla. Oct. 15, 2018). The fact that the sentencing court adjudicated Petitioner's § 2255 motions on the merits prevents him from satisfying the second Bruce condition with respect to those claims: that he has been denied an “earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate.” In re Dorsainvil, 119 F.3d at 251. As courts have widely acknowledged, the statutory remedy afforded under § 2241 “is not an additional, alternative, or supplemental remedy to that prescribed under § 2255,” Davis v. Howard, 2021 WL 2786551 (M.D. Pa. June 15, 2021), and is not available “merely because the sentencing court does not grant relief' on a petitioner's § 2255 motion. Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002) (“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.”). Rather, it is available only when a petitioner has somehow been “barred from challenging the legality of the conviction under § 2255.” Bruce, 868 F.3d at 180. Petitioner plainly faced no such impediment.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be dismissed, with prejudice.
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).
IV. Notice
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).