Alexander v. Outlaw

Filing 2

RECOMMENDED DISPOSITION recommending that the District Court summarily dismiss 1 Petitioner's Petition for Writ of Habeas Corpus. Objections to R&R due 14 days from receipt of the recommendations. Signed by Magistrate Judge Beth Deere on 12/3/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION A N D E R S O N ALEXANDER, R e g . #08919-043 V S. NO. 2:09-CV-00175-BSM-BD PETITIONER

T .C . OUTLAW, Warden F e d e r a l Correctional Complex, F o r r e st City, Arkansas

RESPONDENT

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h e following recommended disposition has been sent to United States District J u d g e Brian S. Miller. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If the objection is to a factual finding, specifically identify that finding and the e v id e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than fourteen (1 4 ) days from receipt of the recommendations. A copy will be furnished to the opposing p a rty. Failure to file timely objections may result in waiver of the right to appeal q u e s tio n s of fact.

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Mail your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground: O n May 9, 2006, Petitioner Anderson Alexander pleaded guilty in the District C o u rt for the Southern District of Mississippi to one count of possession of a firearm by a c o n v ic te d felon, a violation of 18 U.S.C. § 922(g)(1). Alexander v. United States, No. 3 :0 6 c r4 3 4 , 2007 WL 142181, *1 (S.D.Miss. Jan. 16, 2007). On July 21, 2006, the D is tric t Judge sentenced Petitioner to a 180-month term in federal prison, to be followed b y three years of supervised release. Id. Mr. Alexander filed a motion to vacate, set aside, or correct his sentence with the s e n te n c in g court under 28 U.S.C. § 2255. In the motion, Petitioner claimed: (1) his s e n te n c e under 18 U.S.C. § 924(e) was unconstitutional; and (2) his counsel was in e f f e c tiv e for failing to file a notice of appeal in the underlying criminal case as he re q u e s te d . Id. On January 16, 2007, the court entered an opinion and order denying Petitioner's m o tio n to vacate and entered a final judgment dismissing Petitioner's case with prejudice. Id. The court found that Petitioner had waived his right to assert a challenge to his s e n te n c e in the plea agreement, and the Fifth Circuit Court of Appeals has recognized the v a lid ity of these types of waivers. Id. at *2. The court also held that, even if Petitioner 2

had not waived his right to challenge his sentence, the sentence was not unconstitutional b e c a u s e it did not exceed the statutory maximum authorized by the facts. Id. On the ineffective assistance of counsel claim, the court held that because P e titio n e r clearly and unambiguously waived his right to appeal, and his ineffective a s s is ta n c e claim did not relate to the voluntariness of his waiver, Petitioner's counsel was n o t unconstitutionally ineffective for not filing an appeal. Id. at *3. The court denied P e titio n e r's motion for reconsideration of the opinion and order on February 5, 2007. O n February 5, 2007, Petitioner filed a "Motion for Traverse" with the sentencing c o u rt. Alexander v. United States, No. 3:06cr434, 2007 WL 642948, *1 (S.D.Miss. Mar. 2 , 2007). In the motion, Petitioner raised two new claims: (1) he did not knowingly or v o lu n ta rily waive his right to appeal; and (2) his prior state convictions did not constitute f e lo n ie s for federal sentencing purposes. Id. The court denied the motion finding that it w a s an unauthorized successive petition under 28 U.S.C.§ 2255. Id. Petitioner filed a notice of appeal and motion for certificate of appealability with th e Fifth Circuit Court of Appeals to challenge the denial of the motion to vacate. The F if th Circuit denied the motion and dismissed the appeal. See United States v. Alexander, N o . 07-60242 slip op. (5th Cir. Feb. 19, 2008). O n February 8, 2008, Petitioner filed a motion for relief from final judgment with th e sentencing court under Federal Rule of Civil Procedure 60(b) claiming that his s e n te n c e , which was imposed under the enhancement provision of 18 U.S.C. § 924(e),

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was unconstitutional. The court denied the motion finding it was a successive attempt to s e e k post-conviction relief under 28 U.S.C. § 2255 without prior authorization from the a p p e lla te court. On October 3, 2008, the Fifth Circuit denied Petitioner's request for a c e rtif ic a te of appealability and motion to proceed in forma pauperis. See United States v. A le x a n d e r , No. 08-60326 slip op. (5th Cir. Oct. 21, 2008). O n December 2, 2008, Petitioner filed a motion for retroactive application of the s e n te n c in g guidelines to a crack cocaine offense under 18 U.S.C. § 3582 in which he a g a in argued his sentence under 18 U.S.C. § 924(e) was unconstitutional. In its opinion a n d order denying the motion, the District Court found that, even if the relevant a m e n d m e n ts to the Sentencing Guidelines had been in place at the time Petitioner was s e n te n c e d , there would be no change in the guideline range. The Court went on to a d d re s s Petitioner's claim that his sentence was unconstitutional and again held that the c la im was an unauthorized, successive petition under 28 U.S.C. § 2255. P e titio n e r filed a notice of appeal with the Fifth Circuit challenging the District C o u rt's order denying the Rule 60(b) motion. On October 16, 2009, the Fifth Circuit e n te re d a final judgment granting the appellee's motion for summary affirmance of the D is tric t Court's order denying the motion. See United States v. Alexander, No. 09-60054 s lip op. (5th Cir. Oct. 16, 2009).

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In his petition for a writ of habeas corpus filed with this Court under 28 U.S.C. § 2241, Petitioner's only claim is that the sentencing court unlawfully enhanced his s e n te n c e under 18 U.S.C. § 924(e). (Docket entry #1) Petitioner asks this Court to " [ v ]a c a te , set aside the unlawful enhancement pursuant to [18 U.S.C.] 924(e) and remand th e case back to the sentencing district for resentencing." (#1 at p. 6) For the reasons w h ic h follow, the Court recommends that the District Court summarily dismiss the p e titio n for a writ of habeas corpus for lack of jurisdiction under Rule 4 of the Rules G o v e rn in g Section 2254 Cases in the United States District Courts.1 III. S u b je c t Matter Jurisdiction: In m a te s contesting the lawfulness of their federal convictions and the sentences im p o s e d generally must bring a motion in the sentencing court to vacate, set aside or c o rre c t their sentence, under 28 U.S.C. § 2255. Abdullah v. Hedrick, 392 F.3d 957, 959 (8 th Cir. 2004), cert. denied, 545 U.S. 1147, 125 S.Ct. 2984 (2005). A habeas corpus p e titio n under 28 U.S.C. § 2241, on the other hand, is appropriate if the inmate is a tta c k in g the execution of a sentence, or the manner in which the sentence is being carried

R u le 4 provides that, "[i]f it plainly appears from the petition and any attached e x h ib its that the petitioner is not entitled to relief in the district court, the judge must d is m is s the petition and direct the clerk to notify the petitioner." Although the Rules G o v e rn in g Section 2254 Cases are directly applicable to habeas petitions filed by state p riso n e rs under 28 U.S.C. § 2254, they also may be applied to habeas cases brought under 2 8 U.S.C. § 2241. See Rule 1(b) of the Rules Governing Section 2254 Cases; see also W h ite Horse v. United States, 2009 WL 3769520 at *1 (D.Minn. Nov. 10, 2009); Brown v . Missouri, 2009 WL 962821 at *2 (E.D.Mo. April 8, 2009). 5

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out, and it is within the subject matter jurisdiction of the court presiding in the judicial d is tric t where the prisoner is incarcerated. Matheny v. Morrison, 307 F.3d 709, 711-12 (8 th Cir. 2002). In this case, Petitioner's claim clearly challenges the validity of his sentence, not h is conviction or the execution of his sentence. In his petition, Petitioner states, "[n]either th e question of petitioner's guilt nor the advisability of his conviction should be re e x a m in e d but only his sentence." (#1 at p. 12) Petitioner's first § 2255 motion was d e n ie d ; and his appeal of that denial was unsuccessful. See United States v. Alexander, N o . 07-60242 slip op. (5th Cir. Feb. 19, 2008). As set forth in detail above, his s u b s e q u e n t attempts to obtain relief from the sentencing court also have been rejected. Because the sentencing court has already denied Petitioner relief, this Court cannot e n te rta in Petitioner's § 2241 habeas petition unless the § 2255 remedy is "inadequate or in e f f e c tiv e " under the statute's savings clause. Title 28 U.S.C. § 2255(e) provides: An application for a writ of habeas corpus in behalf of a prisoner who is a u th o riz e d to apply for relief by motion pursuant to this section, shall not be e n te rta in e d if it appears that the applicant has failed to apply for relief, by [§ 2255] motion, to the court which sentenced him, or that such court has denied h im relief, unless it also appears that the remedy by [§ 2255] motion is inadequate o r ineffective to test the legality of his detention. 2 8 U.S.C. § 2255.

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To take advantage of the savings clause, a petitioner has the burden of d e m o n s tra tin g the inadequacy or ineffectiveness of seeking relief from the sentencing c o u rt under 28 U.S.C. § 2255. Abdullah, 392 F.3d at 959. This is a "narrowly circumscribed `safety valve.'" United States ex rel. Perez v. Warden, FMC Rochester, 2 8 6 F.3d 1059, 1061-62 (8th Cir. 2002), cert. denied, 537 U.S. 869, 123 S.Ct. 275 (2002). T h e mere fact that an individual may be barred from filing a § 2255 motion for p ro c e d u ra l reasons does not render the remedy inadequate or ineffective so as to permit u tiliz a tio n of § 2241. Abdullah, 392 F.3d at 959. Specifically, the § 2255 remedy is not in a d e q u a te or ineffective merely because the claim was previously raised in a § 2255 m o tio n and denied, because petitioner has been denied permission to file a second or s u c c e s s iv e § 2255 motion, or because a § 2255 petition is time-barred. Id. Thus, a h a b e a s petitioner cannot file a § 2241 petition in the district of incarceration merely b e c a u s e he no longer has avenues for relief in the sentencing district. In this case, Petitioner has failed to meet his burden of demonstrating the in a d e q u a c y or ineffectiveness of seeking relief from the sentencing court. As set forth a b o v e , Petitioner had the opportunity to raise, and did raise, the same claim raised in this p e titio n with the sentencing court. See Abdullah, 392 F.3d at 960 (holding § 2255 relief w a s adequate when petitioner had an unobstructed procedural opportunity to raise his c la im ). Accordingly, the Court does not have jurisdiction to entertain his petition under 2 8 U.S.C. § 2241.

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IV.

C o n c lu s io n F o r the reasons set forth above, the Court recommends that the District Court

s u m m a rily dismiss Petitioner's petition for writ of habeas corpus (#1). DATED this 3rd day of December, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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