Davender v. USA

Filing 5

PRISCS- RULING AND ORDER of Transfer to the USCA- Sucessive 1 -PETITION for Writ of Habeas Corpus,. Signed by Judge Alvin W. Thompson on 12/19/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TODD DAVENDER
V.
PRISONER
CASE NO. 3:11cv568 (AWT)
UNITED STATES OF AMERICA
RULING AND ORDER
The petitioner is currently incarcerated at Fairton Federal
Correctional Institution in Fairton, New Jersey.

Pending before

the court is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 challenging the petitioner’s 2001 federal
conviction and sentence on narcotics charges.
I.

Procedural Background
After his arrest on August 27, 2000, the petitioner was

arraigned in this court on September 20, 2000 on various
narcotics charges stemming from incidents that occurred from June
1999 to August 2000.

(See United States v. Baldwin, et al., Case

No. 3:00cr44 (JCH) (Docket Entries 48, 120.)

On November 6,

2001, a jury found the petitioner guilty of one count of
conspiracy to possess with intent to distribute fifty grams or
more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 846, one count of conspiracy to possess with intent
to distribute five kilograms or more of cocaine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and two counts of
conspiracy to possess with intent to distribute five hundred
grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B).

On January 25, 2002, United States District Judge

Janet C. Hall sentenced the petitioner to a total effective
sentence of 360 months of imprisonment.

(See id. (Docket Entries

538-41.)
The petitioner appealed his conviction.

On November 12,

2003, the Court of Appeals for the Second Circuit affirmed the
judgment of conviction.

See id. (Mandate Court Appeals Second

Circuit, Doc. No. 584.)
On October 1, 2004, the petitioner filed a motion to vacate
or set aside sentence claiming ineffective assistance of trial
and appellate counsel, prosecutorial misconduct and trial court
error as to the calculation of his sentence.
Vacate Sentence, Doc. No. 591.)
the motion.

(See id. Mot.

On May 2, 2008, the court denied

(See id. Rul. Denying Mot. Vacate, Set Aside,

Correct Sentence, Doc. No. 670.)

On November 30, 2009, the

United States Court of Appeals for the Second Circuit dismissed
the petitioner’s appeal from the denial of the section 2255
motion.

(See id. Mandate of United States Court of Appeals for

the Second Circuit, Doc. No. 692.)
On November 29, 2011, the petitioner filed a motion for
modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2).
He argued that the court should reduce his sentence because
Amendment 750 to the United States Sentencing Guidelines,
effective on November 1, 2011, reduced the base offense levels
applicable to crack cocaine offenses and applied retroactively.
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On December 21, 2011, the court granted his motion and reduced
his total effective sentence to 324 months of imprisonment.

(See

id. Orders, Docs. Nos. 716-17.)
The present petition challenges petitioner’s federal
conviction and sentence on the ground that Fair Sentencing Act of
August 3, 2010 (“FSA”) requires a reduction in his total
effective sentence.

The FSA amended 21 U.S.C. §

841(b)(1)(A)(iii) and (b)(1)(B)(iii) to increase the quantities
of crack cocaine that would trigger the ten-year and five-year
mandatory minimum sentences for crack cocaine offenses.
Since the enactment of the Judiciary Act of 1789, the
federal court in the district in which a prisoner is incarcerated
has been authorized to issue a writ of habeas corpus if the
prisoner was in custody under the authority of the United States.
See Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997).
Today, this authority is codified at 28 U.S.C. § 2241(c)(3).
1948, however, Congress enacted 28 U.S.C. § 2255.

In

This statute

“channels collateral attacks by federal prisoners to the
sentencing court (rather than to the court in the district of
confinement) so that they can be addressed more efficiently.”
Id.
Currently, “[a] motion pursuant to § 2241 generally
challenges the execution of a federal prisoner’s sentence,
including such matters as the administration of parole,
computation of a prisoner’s sentence by prison officials, prison
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disciplinary actions, prison transfers, type of detention and
prison conditions.”

Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir.

2001)(citing Chambers v. United States, 106 F.3d 472, 474-75 (2d
Cir. 1997) (describing situations where a federal prisoner would
properly file a section 2241 petition)).

A § 2255 motion, on the

other hand, is considered “the proper vehicle for a federal
prisoner’s challenge to [the imposition of] his conviction and
sentence.”

Id. at 146-47.

Thus, as a general rule, federal

prisoners challenging the imposition of their sentences must do
so by a motion filed pursuant to § 2255 rather than a petition
filed pursuant to § 2241.
Because the present petition challenges the legality of the
petitioner’s sentence, it should have been filed as a motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C. §
2255 in the court in which the petitioner was sentenced.

In

Jiminian, 245 F.3d at 148, the Second Circuit held that a
district court may construe a petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241 as a second or successive
motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255, without providing the petitioner with notice or an
opportunity to withdraw the petition, as long as the petitioner
“has had a prior § 2255 motion dismissed on the merits.”
Here, the petitioner filed a prior motion pursuant to
section 2255 and the court denied the motion on the merits.

See

United States v. Baldwin, et al., Case No. 3:00cr44 (JCH) (Rul.
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Mot. Vacate, Set Aside, Correct Sentence) (D. Conn. May, 2,
2008.)

Accordingly, the court construes the petition for habeas

corpus as a second motion filed pursuant to 28 U.S.C. § 2255.
The district court has no power to entertain a second or
successive section 2255 motion unless the appropriate court of
appeals has authorized the filing of that motion in the district
court.

See 28 U.S.C. § 2244(b)(3); Nelson v. United States, 115

F.3d 136, 136 (2d Cir. 1997) (per curiam) (vacating “for lack of
jurisdiction” a district court judgment that dealt with a
successive § 2255 motion “on its merits” where this Court had not
granted authorization for the filing of that motion).

Where the

court determines that a petition raises only claims which are
properly brought under section 2255, that the petitioner has
filed a prior section 2255 motion which was dealt with on the
merits, and that the petitioner has not obtained authorization
from the court of appeals to file a second petition, the district
court must transfer the motion to this Court.

See Liriano v.

United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam).
Because the petitioner’s prior section 2255 motion was
decided by this court on the merits, the court must follow the
directive given to district courts in Liriano and transfer this
petition, which challenges his federal conviction and sentence,
to the United States Court of Appeals for the Second Circuit in
the interest of justice, pursuant to 28 U.S.C. § 1631.

In

accordance with the requirements of 28 U.S.C. § 2255 and pursuant
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to 28 U.S.C. § 1631, the Clerk is directed to transfer this case
to the United States Court of Appeals for the Second Circuit to
enable that court to determine whether the claim raised in this
petition should be considered by the district court.
It is so ordered.
Dated this 19th day of December 2012, at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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