LUSTER v. ODDO

Filing 9

ORDER Dismissing 1 Petition for Writ of Habeas Corpus filed by DAVID ANTOINE LUSTER. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/31/2017. (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DAVID ANTOINE LUSTER,

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Petitioner,
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VS.
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L J ODDO,
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Respondent.
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_________________________________:

NO. 5:17-cv-00264-CAR-CHW

ORDER
Petitioner DAVID ANTOINE LUSTER, an inmate confined at the Allenwood
United States Penitentiary in White Deer, Pennsylvania, paid the $5.00 filing fee and filed
a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United
States District Court for the Middle District of Pennsylvania. ECF No. 1. Petitioner also
filed a memorandum in support of his petition. ECF No. 2. The Middle District of
Pennsylvania subsequently transferred Petitioner’s case to the Middle District of Georgia.
ECF No. 5, 6. After reviewing the petition and Petitioner’s litigation history, the Court
determines that this action must be DISMISSED for lack of jurisdiction.
I. Current 28 U.S.C. § 2241 Petition and Transfer to this Court
In his Petition, Petitioner asserts that he was convicted and sentenced in the Middle
District of Georgia and that his sentence mandates his participation in the Inmate Financial
Responsibility Program (“IFRP”) pursuant to 18 U.S.C. § 3663A(a)(1), (c), which requires
a person convicted of “a crime of violence” to make restitution to the victim of his crime.
See ECF No. 1 at 1-2. Petitioner contends that the indictments in his criminal cases failed
to allege the “use, attempted use, or threatened use of physical force,” and thus, that they

were insufficient to subject him to participation in the IFRP. ECF No. 2 at 2. Petitioner
states that this argument would have been considered “frivolous” before the “legal
landscape” was substantially changed by four Supreme Court decisions: Apprendi v. New
Jersey, 530 U.S. 466 (2000); Johnson v. United States, 559 U.S. 1333 (2010); Alleyne v.
United States, 133 S. Ct. 2151 (2013); and Johnson v. United States, 135 S. Ct. 2551
(2015). ECF No. 1 at 2; ECF No. 2 at 3.
Based on these statements, the District Court for the Middle District of
Pennsylvania determined that Petitioner’s only available method for seeking relief was
through a petition for habeas corpus under 28 U.S.C. § 2255, which had to be presented to
the sentencing court.

ECF No. 5 at 6-7.

Thus, the Pennsylvania District Court

transferred Petitioner’s petition to this Court. Id. at 8.
II. Conviction and Previous Litigation in this Court
Petitioner’s petition is now before this Court pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts, which provides that
[t]he clerk must promptly forward the petition to a judge under the court’s
assignment procedure, and the judge must promptly examine it. If it plainly
appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.
Rule 4 is applicable to § 2241 petitions under Rule 1(b) of the Rules Governing Section
2254 Cases in the United States District Courts.
Petitioner was charged in five separate indictments with eight counts of bank
robbery and five counts of carrying a firearm during a crime of violence. See United
States v. Luster, 5:03-cr-52-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-98-CAR
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(M.D. Ga.); United States v. Luster, 5:03-cr-99-CAR (M.D. Ga.); United States v. Luster,
5:03-cr-100-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-105-CAR (M.D. Ga.). On
April 1, 2004, Petitioner pled guilty to eight counts of bank robbery and two counts of
using or carrying a firearm during a crime of violence, and he is currently serving a total of
535 months in prison. ECF No. 44, 47, 80 in United States v. Luster, 5:03-cr-52-CAR
(M.D. Ga. Sept. 9, 2009).
Petitioner filed a direct appeal, and the Eleventh Circuit affirmed his conviction and
sentence on January 10, 2005. ECF No. 56 in United States v. Luster, 5:03-cr-52-CAR
(M.D. Ga. Feb. 9, 2005). Moreover, Petitioner has filed at least five 28 U.S.C. § 2255
motions challenging his conviction or sentence. See ECF No. 57, 104, 110, 113, & 119 in
United States v. Luster, 5:03-cr-52-CAR (M.D. Ga.). Additionally, Petitioner has, on
numerous occasions, requested the Eleventh Circuit to authorize the district court to
consider a second or successive § 2255 petition. His criminal docket currently shows ten
orders from the Eleventh Circuit denying these requests. ECF No. 102, 112, 116, 117,
121, 122, 125, 127, 128, & 129 in United States v. Luster, 5:03-cr-52 (M.D. Ga.).
III. This Court’s Lack of Jurisdiction
As the District Court for the Middle District of Pennsylvania recognized, collateral
attacks on the validity of a federal conviction or sentence must generally be raised in a
motion brought under 28 U.S.C. § 2255. ECF No. 5 at 6-7; Sawyer v. Holder, 326 F.3d
1363, 1365 (11th Cir. 2003). If, however, this Court treats Petitioner’s current petition as
a motion under § 2255, the Court does not have jurisdiction because the Eleventh Circuit
has not granted Petitioner permission to file a second or successive § 2255 motion. See 28
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U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3)(A).
This Court also does not have jurisdiction to consider a § 2241 petition for two
reasons. First, the Court does not have jurisdiction over respondent L. J. Oddo, the
warden at Allenwood United States Penitentiary in White Deer, Pennsylvania.

See

Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (“The plain language of the habeas
statute . . . confirms the general rule that for core habeas petitions challenging present
physical confinement, jurisdiction lies in only one district: the district of confinement.”).
Second, the Eleventh Circuit recently overruled its prior precedents and established
a new test for determining when a prisoner can proceed with a § 2241 petition.
McCarthan v. Dir. Of Goodwill Indus.-Suncoast, 851 F.3d 1076 (11th Cir. 2017) (en banc).
The saving clause in 28 U.S.C. § 2255(e) allows a § 2241 petition when a motion under
§ 2255 is “inadequate or ineffective to test the legality of . . . detention.”

After

McCarthan, the only consideration is whether the prisoner could have brought the type of
claim he is raising in his § 2241 petition in a motion to vacate under § 2255. McCarthan,
851 F.3d at 1089. If he could have raised the claim in a § 2255 motion, the district court
does not have jurisdiction to consider the claim in a § 2241 petition. Id.; Williams v.
Warden, 713 F.3d 1332, 1338 (11th Cir. 2013) (“[W]e are compelled to conclude that the
saving[] clause is a limitation on jurisdiction.”), overruled on other grounds by
McCarthan, 851 F.3d at 1096. “[A]ny ‘cognizable claim] that could have been brought
under § 2255, even if circuit precedent or a procedural bar would have foreclosed the
claim, cannot be brought under § 2241 in this circuit after McCarthan.” Donaldson v.
Warden, FCI Coleman Medium, --- F. App’x ---, 2017 WL 2814355, at *1 (11th Cir. Apr.
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18, 2017) (per curiam) (quoting McCarthan, 851 F.3d at 1089). The Eleventh Circuit
specifically held “that a change in caselaw does not make a motion to vacate a prisoner’s
sentence ‘inadequate or ineffective to test the legality of his detention.’” McCarthan, 851
F.3d at 1080 (quoting 28 U.S.C. § 2255(e)). Thus, because Petitioner’s claims “could
have been brought in a § 2255 motion to vacate, he has not met [the Eleventh Circuit’s]
requirements for the § 2255(e) saving clause necessary to bring a § 2241 petition.” 1
Donaldson, 2017 WL 2814355, at *1.
For these reasons, this Court does not have jurisdiction to consider Petitioner’s
§ 2241 petition, regardless of whether it is construed as a motion brought under 28 U.S.C.
§ 2255 or a petition filed under § 2241.2 The action is, therefore, DISMISSED for lack

1

Not only could Petitioner bring his claims in a motion to vacate under § 2255, he did bring
these claims in his previous § 2255 motions and his applications to the Eleventh Circuit
seeking permission to file second or successive § 2255 motions. See United States v.
Luster, 3:05-cr-52 (M.D. Ga.) at ECF No. 102 at 2 (“Luster asserts that both his claims rely
upon a new rule of constitutional [law], the Supreme Court’s decision in Alleyne v. United
States . . . .”); ECF No. 110 at 1 (Petitioner “moves this Court to set aside the judgment in
this case and correct his sentence . . . in light of Johnson v. United States . . . .”); ECF No.
112 at 2 (“Luster asserts that both his claims rely upon a new rule of constitutional law as
set out in Johnson v. United States . . . .”); ECF No. 113 at 1 (Petitioner seeks review based
on Johnson v. United States); ECF No. 117 at 3 (“Luster’s Johnson-based claims must be
dismissed because he raises the same claims in the instant application that were raised and
rejected in his prior applications.”); ECF No. 119 at 1 (“Motion to vacate plea, set aside or
remand due to intervening change in law under Johnson v. United States . . . .”); ECF No.
121 at 2 (“Luster asserts each of his three claims rely upon Johnson v. United States . . . .”);
ECF No. 122 at 2 (“Luster asserts each of his two claims rely upon Johnson v. United
States . . . .”); ECF No. 125 at 2 (“Luster asserts each of his claims rely upon Johnson v.
United States . . . .”); and ECF No. 127 at 2 (“Luster asserts that his claim relies on Johnson
v. United States . . . .”).
2
A dismissal for lack of subject matter jurisdiction does not constitute a final order for
purposes of 28 U.S.C. § 2254(c). Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir.
2004). Instead, it is a “final decision” under 28 U.S.C. § 1291. Id. The Court, therefore,
need not address whether a certificate of appealability should issue. Id.; Bollin v. Sec’y
Fla. Dep’t of Corr., 628 F. App’x 728, 730 (11th Cir. 2016).
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of jurisdiction.
SO ORDERED, this 31st day of August, 2017.

S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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