COPLIN v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Robert B. Kugler on 8/30/2011. (bdk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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JEFFREY COPLIN,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondents.
Hon. Robert B. Kugler
Civil No. 11-4622 (RBK)
OPINION
APPEARANCES:
JEFFREY COPLIN, #54688-066
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro Se
KUGLER, District Judge
Jeffrey Coplin, (“Petitioner”), an inmate incarcerated at FCI Fort Dix in New Jersey, filed
a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241 challenging the duration of
his federal sentence. This Court will summarily dismiss the Petition without prejudice to any
right Petitioner may have to file a motion in the sentencing court for reduction of his sentence
under 18 U.S.C. § 3582(c)(2).
I. BACKGROUND
On February 27, 2003, United States District Judge J. Curtis Joyner sentenced Petitioner
to concurrent sentences of 20 years imprisonment and 10 years of supervised release, the
mandatory minimum where a defendant has previously been convicted for a felony drug offense,
see 21 U.S.C. § 841, based on his guilty plea to two counts of distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), and two counts of distribution of cocaine base within 1,000
feet of a playground, in violation of 21 U.S.C. § 860. See United States v. Coplin, 106 Fed.
App’x 143, 144 (3d Cir. 2004). Petitioner appealed, and on August 9, 2004, the Third Circuit
affirmed. Id.
Coplin filed a § 2255 motion in the sentencing court in March 2006, which Judge Joyner
denied in November 2007, after conducting an evidentiary hearing. See United States v. Coplin,
Crim. No. 00-0745 (JCJ) order (E.D. Pa. Nov. 2, 2007). The Third Circuit denied a certificate of
appealability on June 13, 2008. Id. at Dkt. 105. On September 9, 2010, the Third Circuit denied
Coplin’s application to file a second or successive § 2255 motion. Id. at Dkt. 114.
On June 17, 2011, Coplin filed a two-page document “requesting to be released by the
Bureau of Prisons because the judgment within the commitment order is unconstitutional in
violation of equal protection of the laws.” See Coplin v. Zickefoose, Civ. No. 11-4422 petition
(RBK) (D.N.J. filed Aug. 1, 2011). By Opinion and Order entered August 5, 2011, this Court
construed the submission as a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. §
2241, and summarily dismissed the Petition without prejudice to any right Petitioner may have to
file a motion in the sentencing court for reduction of his sentence under 18 U.S.C. § 3582(c)(2).
On August 5, 2011, Coplin filed a document labeled as a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241 seeking release on the ground that “his right to equal protection
of the laws is violated where similarly situated persons have received substantially lower terms of
imprisonment for the same crime [distribution of crack cocaine] where the mandatory penalty is
set by the amount of controlled substance the defendant is held responsible for distributing or
possessing under § 841(b).” (Dkt. 1 at 10.) Petitioner asserts:
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The petitioner is being detained by the Bureau of Prisons pursuant
to a Judgment and Commitment Order issued by the United States
District Court of the Eastern District of Pennsylvania. The
Petitioner was charged and convicted of distributing 50 grams of
cocaine base, known as “crack.” [U.S.A. v. Coplin, 2:00-CR00745-1] (JCJ). This Controlled substance which is now
considered less serious then once believed, has been targeted by the
Department of Justice for reform because the “current federal
cocaine sentencing structure fails to appropriately reflect the
differences and similarities between crack and powder cocaine, . . .
the Administration believes Congress’s goal should be to
completely eliminate the sentencing disparity between crack
cocaine and powder cocaine.” Lanny Breuer before the Senate
Judiciary Committee’s Subcommittee on Crime and Drugs, at p. 10
. . . . This announcement led the way . . . for district courts to
reject the 100:1 ratio and vary categorically from the crack-cocaine
Guidelines based on a policy disagreement with those Guidelines .
. . . [I]f district court[s] can [now] impose a sentence below the
mandatory minimum . . , the petitioner demands to benefit the
same as those similarly situated. It is also clear that the petitioner
is denied equal protection because of his race . . . . The petitioner
believes that the crack statute is discriminatory, and was intended
because African Americans are a disfavored minority, and these
type of laws are a continuity of methods thought to be needed to
control African Americans. The petitioner avers that his right to
equal protection of the laws of the United States is violated where
similarly situated defendants, under te same federal statute, with
identical amounts of crack cocaine or greater, receive substantially
lower sentences due to the shift in Department of Justice policy
shift toward sentences for crack cocaine offenses.
(Dkt. 1 at 2-5.)
II. STANDARD OF REVIEW
“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v.
Scott, 512 U.S. 849, 856 (1994). Habeas Rule 2(c) requires a § 2254 petition to “specify all the
grounds for relief available to the petitioner,” “state the facts supporting each ground,” “state the
relief requested,” be printed, typewritten, or legibly handwritten, and be signed under penalty of
perjury. 28 U.S.C. § 2254 Rule 2(c), applicable through Rule 1(b).
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Habeas Rule 4 requires a judge to sua sponte dismiss a § 2254 petition without ordering a
responsive pleading “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.” 28 U.S.C. § 2254 Rule 4, applicable
through Rule 1(b). Thus, “Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.” McFarland, 512 U.S. at 856. Dismissal
without the filing of an answer has been found warranted when “it appears on the face of the
petition that petitioner is not entitled to [habeas] relief.” Siers v. Ryan, 773 F.2d 37, 45 (3d Cir.
1985), cert. denied, 490 U.S. 1025 (1989); see also McFarland, 512 U.S. at 856; United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas petition may be dismissed where “none of the
grounds alleged in the petition would entitle [petitioner] to [habeas] relief”); see also Mayle v.
Felix, 545 U.S. 644, 655 (2005).
III. DISCUSSION
A. Jurisdiction
Section 2241 of Title 28 provides in relevant part:
(c) The writ of habeas corpus shall not extend to a prisoner unless
– . . . He is in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2241(c)(3).
Lack of subject matter jurisdiction may be raised by the Court sua sponte at any time.
See Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); Louisville & Nashville
Railroad Co. v. Mottley, 211 U.S. 149, 152 (1908); Van Holt v. Liberty Mutual Fire Ins. Co., 163
F.3d 161, 166 (3d Cir. 1998).
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The presumptive means to challenge a federal conviction or sentence is by a motion
under 28 U.S.C. § 2255. See Davis v. United States, 417 U.S. 333 (1974); Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002). Specifically, 28 U.S.C. § 2255 expressly prohibits a
district court from entertaining a challenge to a prisoner’s federal sentence under § 2241 unless
the remedy under § 2255 is “inadequate or ineffective.” 1 See 28 U.S.C. § 2255(e). Specifically,
§ 2255(e) provides:
An application for a writ of habeas corpus [pursuant to 28 U.S.C. §
2241] in behalf of a prisoner who is authorized to apply for relief
by motion pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by motion,
to the court which sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e); see Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir. 2002); In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); Millan-Diaz v. Parker, 444 F.2d 95 (3d Cir. 1971);
Application of Galante, 437 F.2d 1164 (3d Cir. 1971) (per curiam); United States ex rel.
Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954).
A § 2255 motion is inadequate or ineffective, authorizing resort to § 2241, “only where
the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of his wrongful detention claim.”
Cradle, 290 F. 3d at 538. “It is the inefficacy of the remedy, not the personal inability to use it,
that is determinative.” Id. The provision exists to ensure that petitioners have a fair opportunity
1
The “inadequate or ineffective” language was necessary because the Supreme Court
held that “the substitution of a collateral remedy which is neither inadequate nor ineffective to
test the legality of a person’s detention does not constitute a suspension of the writ of habeas
corpus.” Swain v. Pressley, 430 U.S. 372, 381 (1977).
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to seek collateral relief, not to enable them to evade the statute of limitations under § 2255 or the
successive petition bar. Id. at 539.
In In re Dorsainvil, 119 F.3d at 251, the United States Court of Appeals for the Third
Circuit applied the “inadequate or ineffective” test to a § 2241 claim challenging a sentence on
the basis of a change of substantive law that occurred after Dorsainvil’s first § 2255 motion was
decided.2 The Court of Appeals first determined that Dorsainvil could not raise the Bailey claim
in a successive § 2255 motion because the AEDPA restricted successive § 2255 motions to
constitutional claims. While the Third Circuit found § 2255 inadequate and ineffective under the
narrow circumstances present in that case, the court cautioned:
We do not suggest that § 2255 would be “inadequate or
ineffective” so as to enable a second petitioner to invoke § 2241
merely because that petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255. Such a holding
would effectively eviscerate Congress’s intent in amending § 2255.
However, allowing someone in Dorsainvil’s unusual position that of a prisoner who had no earlier opportunity to challenge
his conviction for a crime that an intervening change in
substantive law may negate, even when the government
concedes that such a change should be applied retroactively - is
hardly likely to undermine the gatekeeping provisions of §
2255.
Dorsainvil at 251 (emphasis added).3
2
Dorsainvil claimed that he was actually innocent of “use of a firearm” after the Supreme
Court held in Bailey v. United States, 516 U.S. 137 (1995), that the crime, “use of a firearm,”
does not reach certain conduct. The Supreme Court later ruled that the court’s interpretation of
the statute in Bailey applied retroactively under § 2255 to convictions that were final. See
Bousley v. United States, 523 U.S. 614 (1998).
3
Several courts of appeals have adopted similar tests. See Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000);
Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999); In re Davenport, 147 F.3d 605, 611 (7th
Cir. 1998); Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997).
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Here, Petitioner’s claim - his 20-year sentence violates equal protection because the
Sentencing Guidelines now provide for lower terms of incarceration for defendants convicted of
the crimes for which Petitioner was sentenced in 2003 - is within the scope of claims cognizable
under § 2255. Thus, he may not seek relief under § 2241 unless the remedy under § 2255 is
inadequate or ineffective. Section 2255 is not inadequate or ineffective for Petitioner’s claim,
however, because he does not contend that, as a result of a Supreme Court decision or statutory
amendment subsequent to his § 2255 motion, the conduct for which he was convicted distribution of crack cocaine - is now non-criminal. See Dorsainvil, 119 F. 3d at 250 (“A
Supreme Court decision interpreting a criminal statute that resulted in the imprisonment of one
whose conduct was not prohibited by law presents exceptional circumstances where the need for
the remedy afforded by the writ of habeas corpus is apparent”) (quoting Davis v. United States,
417 U.S. 333, 346 (1974)); Massey v. United States, 581 F. 3d 172 (3d Cir. 2009); Okereke v.
United States, 307 F.3d 117 (3d Cir. 2002). Because § 2255 is not an inadequate or ineffective
remedy for Petitioner’s claim, this Court lacks jurisdiction to entertain Petitioner’s claim under §
2241. This Court will dismiss the Petition, like Petitioner’s prior submission, for lack of
jurisdiction under § 2241.
This Court will again inform Petitioner that on June 30, 2011, the United States
Sentencing Commission voted to give retroactive effect to the permanent guideline amendment
regarding crack cocaine offenses implementing the Fair Sentencing Act of 2010, Pub. L. 111220. See News Release, U.S. Sentencing Commission (June 30, 2011),
http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Releases/20110630_Pres
s_Release.pdf (Aug. 4, 2011). Retroactivity of the guideline amendment will become effective
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on November 1, 2011, unless Congress acts to disapprove the amendment. Id. Absent
congressional disapproval, crack cocaine offenders like Petitioner in federal prison may be
eligible to file a motion in the sentencing court to reduce the sentence pursuant to 18 U.S.C. §
3585(c)(2), which authorizes a sentencing court to modify a term of imprisonment where the
term is based on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 994(o).4 See Dillon v. United States, 130 S. Ct. 2683
(2010); United States v. Flemming, 617 F. 3d 252 (3d Cir. 2010).
The dismissal of the Petition in this case is without prejudice to any right Petitioner may
have to move in the sentencing court for reduction of his sentence under 18 U.S.C. § 3582(c)(2)
based on retroactivity of the Sentencing Commission’s proposed permanent amendment to the
guidelines implementing the Fair Sentencing Act of 2010.5
4
Section 3582(c)(2) provides:
Modification of an imposed term of imprisonment. The court may not modify
a term of imprisonment once it has been imposed except that . . . in the case of a
defendant who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the lkSentencing
Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the [sentencing] court
may reduce the term of imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2).
5
This Court has not evaluated the merits of any motion under 18 U.S.C. § 3582(c)(2).
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IV. CONCLUSION
The Court dismisses the Petition for lack of jurisdiction, without prejudice to any right
Petitioner may have to move for reduction of his sentence under 18 U.S.C. § 3582(c)(2).
s/Robert B. Kugler
ROBERT B. KUGLER, District Judge
Dated:
August 30
, 2011
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