Longale v. Quintana
Filing
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MEMORANDUM OPINION & ORDER: (1) DENYING WITHOUT PREJUDICE Longale's 1 4 petitions for a writ of habeas corpus; (2) this action is STRICKEN from the docket; (3) the court will enter a judgment. Signed by Judge Karen K. Caldwell on 9/23/15.(KJR)cc: COR, Longale (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
RONALD LONGALE,
Petitioner,
Civil Action No. 5: 15-213-KKC
V.
FRANCISCO QUINTANA, Warden,
MEMORANDUM OPINION
AND ORDER
Respondent.
*** *** *** ***
Ronald Longale is a prisoner at the Federal Medical Center in Lexington, Kentucky.
Proceeding without counsel, Longale has filed an original and supplemented petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1, 4] The Court conducts an initial
review of habeas corpus petitions.
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).
A petition will be denied “if it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule
1(b)). The Court evaluates Longale’s petition under a more lenient standard because he is
not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007). At this stage of
the proceedings, the Court accepts the petitioner’s factual allegations as true and construes
all legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
On November 30, 2011, a federal grand jury sitting in Syracuse, New York issued an
indictment charging Longale with being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g). The indictment specified five prior felony convictions, including two for the
attempted sale of narcotics and another for third-degree burglary. Longale pled guilty to
the charge on March 20, 2012, without an agreement. The trial court found that Longale’s
Criminal History Category was Six because his two drug convictions were for “controlled
substance offenses” and his third-degree burglary conviction was for a “crime of violence”
under the Sentencing Guidelines. The court accordingly sentenced him to a 78-month term
of incarceration on September 19, 2012. United States v. Longale, No. 5:11-CR-557-DNH-1
(N.D.N.Y. 2011). The Second Circuit affirmed on direct appeal, concluding amongst other
things that his prior New York conviction for third-degree burglary constituted a “crime of
violence” under U.S.S.G. § 4B1.2(a)(2)’s residual clause. United States v. Longale, No. 124004-CR (2d Cir. 2012).
On November 3, 2014, Longale filed a motion to alter or vacate his sentence
pursuant to 28 U.S.C. § 2255. Longale indicates that the motion remained pending when
he filed his petition in this matter. [R. 1 at 4; R. 4 at 2] This is still the case, as the United
States filed its response in opposition to his § 2255 motion on September 21, 2015, and no
decision has yet been rendered. Longale, No. 5:11-CR-557-DNH-1 (N.D.N.Y. 2011) [R. 38
therein]
In his petition, Longale contends that pursuant to “Johnson v. United States” that
“the force clause found in 18 U.S.C. § 924(e)(2)(B) relative to violent force is
unconstitutionally vague. This is precisely the statute used to sentence petitioner.” [R. 1 at
7]
Longale is likely referring to the Supreme Court’s June 26, 2015, decision in
Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), where it
held that the “residual clause” of the Armed Career Criminal Act of 1984 (“ACCA”) is void
for vagueness in violation of the Fifth Amendment because “the indeterminacy of the wide-
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ranging inquiry required by the residual clause both denies fair notice to defendants and
invites arbitrary enforcement by judges.” Id. at 2557. In doing so, the Court clearly stated
that “[t]oday’s decision does not call into question application of the Act to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Johnson,
135 S. Ct. at 2563. However, Longale’s reliance upon that decision as a ground for relief in
this proceeding is unavailing for several reasons.
First, Longale’s petition for relief under 28 U.S.C. § 2241 is premature where his
motion under § 2255 remains pending. Because a federal prisoner must challenge the
legality of his federal conviction or sentence by filing a motion for post-conviction relief
under 28 U.S.C. § 2255, Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003), a habeas
corpus petition filed under § 2241 is only permitted where the remedy afforded by § 2255(a)
is “inadequate or ineffective” to test the legality of his detention, Truss v. Davis, 115 F.
App’x 772, 773-74 (6th Cir. 2004).
The remedy under § 2255 cannot be considered
“inadequate and ineffective” where Longale has filed a motion for relief under that section
and it is currently pending before the trial court for consideration on the merits. Cf. Smith
v. Butler, 2015 WL 224925, at *2 (E.D. Ky. Jan. 15, 2015); White v. Grondolsky, No. 06-CV309, 2006 WL 2385358, at *2 (E.D. Ky. Aug. 17, 2006) (finding that petitioner was not
entitled to relief under § 2241 where he was simultaneously litigating the validity of his
sentence in a pending § 2255 motion); Reynolds v. Martinez, No. 09-CV-2509, 2009 WL
3182918, at *1 (3d Cir. Oct. 6, 2009); United States v. Pirro, 104 F.3d 297, 300 (9th Cir.
1997).
Second, Longale does not challenge his underlying conviction, but contends that the
sentence imposed was excessive. The Sixth Circuit has repeatedly held that “claims of
sentencing error may not serve as the basis for an actual innocence claim.”
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Brown v.
Hogsten, 503 F. App’x 342, 343 (6th Cir. 2012) (affirming denial of § 2241 petition
challenging ACCA enhancement on ground that
prior conviction for burglary did not
constitute a “violent felony”); Reminsky v. United States, 523 F. App’x 327, 329 (6th Cir.
2013) (“The savings clause under § 2255(e) does not apply to sentencing claims.”). Longale’s
claim is therefore not the sort of “actual innocence” claim falling within the narrow scope of
claims cognizable under § 2241. Instead, his claim under Johnson is one which he can, and
therefore must, pursue under § 2255.
Accordingly, IT IS ORDERED that:
1.
David Longale’s original and supplemented petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 [R. 1, 4] is DENIED WITHOUT PREJUDICE.
2.
This action is STRICKEN from the Court’s docket.
3.
The Court will enter an appropriate judgment contemporaneously with this
Order.
Entered September 23, 2015.
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