Mobley v. United States of America

Filing 8

ORDER denying 7 Motion to Reconsider (Written Opinion). Signed by Senior Judge David S. Doty on 6/9/2014. (PJM) cc: Lorendo Mobley. Modified on 6/9/2014 (LPH).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-646(DSD/SER)
Lorendo Mobley,
Petitioner,
ORDER

v.
United States of America,
Defendant.

Lorendo Mobley, #08178-002, Federal Medical Center, P.O.
Box 4000, Rochester, MN 55903, pro se.
Gregory G. Brooker, Assistant U.S. Attorney, 300 South
Fourth Street, Suite 600, Minneapolis, MN 55415, counsel
for Respondent.
This matter is before the court upon the pro se objection by
petitioner Lorendo Mobley to the report and recommendation of
United States Magistrate Judge Steven E. Rau.

Based on a review of

the file, record and proceedings herein, and for the following
reasons, the court overrules the objection.

BACKGROUND
On October 8, 2002, a federal jury in Alabama found Mobley
guilty of conspiracy to possess and distribute crack cocaine, in
violation of 21 U.S.C. § 846, and two counts of possessing a
firearm in connection with a drug-related crime, in violation of 18
U.S.C. §§ 922 and 924.

Mobley was sentenced to 229 months of

imprisonment, consisting of 169 months on the controlled substance

offense, plus 60 months for the first firearm offense, to be served
consecutively.

Mobley

was

also

sentenced

to

120

months

of

incarceration for the second firearm offense, to run concurrently
with the sentence for the controlled substance offense.

The

sentence also included a supervised release term of five years.
Mobley appealed unsuccessfully to the Eleventh Circuit Court of
Appeals.

In June 2007, Mobley moved to vacate his convictions

under 28 U.S.C. § 2255.

The court denied the untimely motion.

See

United States v. Mobley, No. 02-000153, 2008 WL 686685, at *1 (S.D.
Ala. Mar. 11, 2008).
On March 10, 2014, Mobley filed the instant 28 U.S.C. § 2241
petition in the District of Minnesota, where he is incarcerated.
The magistrate judge recommended dismissal.

Objections to the

report and recommendation were due April 11, 2014, and no such
objections

were

filed.

The

court

adopted

the

report

and

recommendation in its entirety and denied the instant application
on April 17, 2014.

See ECF No. 5.

On April 23, 2014, the court

received Mobley’s objection to the report and recommendation.

On

May 14, 2014, Mobley filed a motion to reconsider, explaining that
his objection to the report and recommendation was untimely due to
insufficient postage and requesting that the court vacate the order
and judgment of April 17, 2014 and consider his objection.
No. 7.

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See ECF

DISCUSSION
Here, even if the court were to consider Mobley’s untimely
objection, it would be overruled on the merits.

The court reviews

the report and recommendation of the magistrate judge de novo.

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U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b); D. Minn. LR 72.2(b).
Mobley argues that § 2255 is an “inadequate or ineffective”
remedy, such that he may apply for a writ of habeas corpus pursuant
to § 2241.

The court disagrees.

“A petitioner who seeks to

challenge his sentence or conviction generally must do so in the
sentencing court through § 2255 and cannot use § 2241 to challenge
the

conviction

without

first

showing

that

§

2255

would

be

inadequate or ineffective.” Abdullah v. Hedrick, 392 F.3d 957, 959
(8th Cir. 2004) (citations omitted).

A remedy under § 2255 is not

inadequate or ineffective merely due to a procedural barrier or
because it is time-barred.
(8th Cir. 2003).

Hill v. Morrison, 349 F.3d 1089, 1091

Specifically, § 2255 is not inadequate or

ineffective simply because a petitioner has already filed a § 2255
motion or has been denied permission to file a second motion.
United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000).
Here, Mobley argues that the sentencing court should have
ordered the term of supervised release to run concurrently with the
term of imprisonment.

Such an argument, however, is not “a

challenge to a sentence as executed by the prison and parole
authorities [that] may be made by petition for a writ of habeas

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corpus, [but is] a challenge to the sentence as imposed [that] must
be made under 28 U.S.C. § 2255.”

See Gomori v. Arnold, 533 F.2d

871, 875 (3d Cir. 1976) (emphasis added) (citations omitted)
(collecting cases); see also United States v. Hutchings, 835 F.2d
185,

186

(8th

Cir.

1987)

(distinguishing

§

2255

petitions

challenging the validity of a sentence from § 2241 petitions
“challenging the manner in which [a] sentence was being executed”
(citation omitted)).

A § 2241 petition arguing that supervised

release should run concurrently with a term of incarceration
presents issues properly asserted under § 2255.

See, e.g., Bryant

v. Samuels, No. 06-5396, 2006 WL 3437588, at *6 (D.N.J. Nov. 27,
2006). In short, petitioner attacks his sentence, meaning that the
issues presented in the instant application are properly raised in
a § 2255 motion.
A second or successive motion must be certified by a panel of
the appropriate circuit court, and usually must contain newly
discovered evidence or a new and previously-unavailable rule of
constitutional law that is retroactive to cases on collateral
review.

See 28 U.S.C. § 2255(h).

In the present case, petitioner

did not receive a certification from the Eleventh Circuit to file
a second § 2255 motion.

See Villaneuva v. United States, 346 F.3d

55, 61 (2d Cir. 2003) (“[W]e hold that a habeas or § 2255 petition
that is properly dismissed as time-barred ... constitutes an
adjudication on the merits for successive purposes.”).

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Therefore,

even if the court were to consider the untimely objection, it would
be overruled.

As a result, the motion to reconsider is denied.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion to reconsider [ECF No. 7] is denied.
Dated:

June 9, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court

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