GARCIA v. HOLLINGSWORTH
Filing
9
OPINION FILED. Signed by Judge Robert B. Kugler on 11/20/13. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MIGUEL N. GARCIA,
:
:
Petitioner,
:
:
v.
:
:
U.S PAROLE COMMISSION,
:
:
Respondent.
:
_________________________________________ :
Civ. No. 12-0356 (RBK)
OPINION
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Petitioner is currently a federal prisoner incarcerated at F.C.I. Fort Dix in Fort Dix, New
Jersey. He is currently serving a sentence of 360 months imprisonment after a jury in the United
States District Court for the Eastern District of Wisconsin found him guilty of conspiracy with
intent to distribute more than five kilograms of cocaine and knowingly and intentionally
attempting to possess with the intent to distribute cocaine. Petitioner is proceeding with a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The habeas petition will be
dismissed due to a lack of jurisdiction.
II.
BACKGROUND
The United States Court of Appeals for the Seventh Circuit set forth the procedural
history of petitioner’s previous convictions as follows:
In June of 1972 a federal court sentenced Garcia to six years’
imprisonment for conspiracy to possess with the intent to distribute
heroin. He was paroled in September of 1974. In January of 1976,
the United States Parole Commission issued an arrest warrant for
Garcia, charging him with the sale of heroin while on parole. In
October of 1977, a Michigan state court convicted Garcia for
selling heroin, and sentenced Garcia to thirteen to twenty years’
1
imprisonment. In March of 1978, in the wake of Garcia’s state
court conviction, the Parole Commission filed a supplemental
warrant. Garcia’s parole was revoked on October 1, 1978. On
July 13, 1981, Garcia was paroled again, with his parole term to
expire on January 11, 1982.
United States v. Garcia (Garcia I), 89 F.3d 362, 366 (7th Cir. 1996). 1
In 1995, petitioner was sentenced for the crimes for which is now incarcerated. Petitioner
was classified as a career offender for sentencing purposes. On direct appeal, he argued in part
that using the 1972 conviction to classify him as a career offender violated his due process rights.
The Seventh Circuit affirmed the judgment and conviction on appeal. See id. 366-68.
Petitioner subsequently filed a motion to vacate, set aside or correct his sentence pursuant
to 28 U.S.C. § 2255 was denied in the Eastern District of Wisconsin and the Seventh Circuit
denied a certificate of appealability. Thereafter, petitioner filed a habeas petition pursuant to 28
U.S.C. § 2241 in this Court. See Garcia v. Grondolsky (Garcia II), No. 09-0783, 2009 WL
1929319, at *1 (D.N.J. July 1, 2009), aff’d, 350 F. App’x 616 (3d Cir. 2009) (per curiam).
Petitioner argued in that petition that “a 1972 conviction for conspiracy to possess with intent to
distribute heroin, should not have counted as a predicate offense.” Id. Ultimately, this Court
determined that it lacked jurisdiction to consider that § 2241 habeas petition and the habeas
petition was dismissed. See id. at *3.
In January, 2012, the Court received the instant petition. Petitioner asserts that he was
improperly labeled a career offender in his 1995 conviction which increased his sentence. More
specifically, he claims that his correct parole date from the 1972 conviction was July 13, 1980,
not July 13, 1981. Accordingly, petitioner argues that this 1980 parole date does not render his
1972 conviction within the scope of the Federal Sentencing Guideline § 4B1.1 for career
1
The Court takes judicial notice of the prior opinions in petitioner’s federal criminal proceedings
and subsequent federal habeas proceedings. See McPherson v. United States, 392 F. App’x 938,
940 n.1 (3d Cir. 2010) (taking judicial notice of the official record of prior court proceedings).
2
offenders because his parole date on that conviction was more than fifteen years prior to his 1995
conviction. 2
Respondent filed an answer to the petition. Respondent argues in part that this Court
lacks jurisdiction to consider the instant habeas petition. Petitioner filed a reply to the answer.
The matter is now ripe for adjudication.
III.
DISCUSSION
Petitioner is essentially challenging the sentence he received for his 1995 conviction in
this habeas petition. He argues that the Eastern District of Wisconsin improperly used the 1972
drug conviction to classify him as a career offender because he should have been paroled in 1980
as opposed to 1981 on that conviction.
Generally, a challenge to the validity of a federal conviction or sentence must be brought
under 28 U.S.C. § 2255. See Jackman v. Shartle, No. 13-2500, 2013 WL 4419333, at *1 (3d Cir.
Aug. 20, 2013) (per curiam) (citing Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002)).
2
Section 4B1.1(a) of the United States Sentencing Guidelines states as follows:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense.
Section 4A1.2(e) of the United States Sentencing Guidelines further states that:
Any prior sentence of imprisonment exceeding one year and one
month that was imposed within fifteen years of the defendant’s
commencement of the instant offense is counted. Also count any
prior sentence of imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being
incarcerated during any part of such fifteen-year period.
3
This is generally true because § 2255 prohibits a district court from entertaining a challenge to a
prisoner’s federal sentence through § 2241 unless the remedy under § 2255 is “inadequate or
ineffective.” See 28 U.S.C. § 2255(e). Indeed, § 2255(e) states that:
[a]n application for a writ of habeas corpus 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 a court has denied him relief, unless it also
appears that the remedy by the motion is inadequate or ineffective
to test the legality of his detention.
28 U.S.C. § 2255(e). A § 2255 motion is “inadequate or ineffective,” which permits a petitioner
to resort to a § 2241 petition, “only where the petitioner demonstrates that some limitation or
procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication
of his wrongful [sentence] claim.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir.
2002) (citations omitted). However, “[s]ection 2255 is not inadequate or ineffective merely
because the sentencing court does not grant relief, the one-year statute of limitations has expired,
or the petitioner is unable to meet the stringent gatekeeping requirements of . . . § 2255.”
Cradle, 290 F.3d at 539 (citations omitted). “It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.” Id. at 538 (citation omitted). “The provision exists to
ensure that petitioners have a fair opportunity to seek collateral relief, not to enable them to
evade procedural requirements.” Id. at 539 (citing In re Dorsainvil, 119 F.3d 245, 251-52 (3d
Cir. 1997)).
In Dorsainvil, the Third Circuit held that the remedy provided by § 2255 is “inadequate
or ineffective,” permitting resort to § 2241, where a prisoner who previously had filed a § 2255
motion on other grounds “had no earlier opportunity to challenge his conviction for a crime that
an intervening change in substantive law may negate[.]” 119 F.3d at 251. Nevertheless, the
4
Third Circuit emphasized that its holding was not suggesting that a § 2255 motion was
“inadequate or ineffective” merely because a petitioner is unable to meet the strict gatekeeping
requirements of section 2255. See id. The “safety valve,” as stated in Dorsainvil, is a narrow
one and has been held to apply in situations where the prisoner has had no prior opportunity to
challenge his conviction for a crime later deemed to be non-criminal by an intervening change in
the law. See Okereke, 307 F.3d at 120 (citing Dorsainvil, 119 F.3d at 251).
Petitioner does not allege facts which bring him within the Dorsainvil exception.
Petitioner does not allege in the instant habeas petition that he had no earlier opportunity to
challenge his conviction for a crime that an intervening change in substantive law may negate.
Indeed, petitioner previously attacked the use of his 1972 drug conviction as a predicate offense
on direct appeal and in his previously filed § 2241 habeas petition in this Court. See Garcia I, 89
F.3d at 366 (outlining petitioner’s claim that the using the 1972 drug conviction to classify him
as a career offender violated his constitutional rights); Garcia II, 2009 WL 1929319, at *1
(outlining petitioner’s claim that his “1972 conviction for conspiracy to possess with intent to
distribute heroin, should not have counted as a predicate offense.”) (footnote omitted). Petitioner
has not shown that Section 2255 is inadequate or ineffective to test the legality of his detention.
Accord United States v. Brown, 456 F. App’x 79, 81 (3d Cir. 2012) (per curiam) (“We have held
that § 2255’s ‘safety valve’ applies only in rare circumstances, such as when an intervening
change in the statute under which the petitioner was convicted renders the petitioner’s conduct
non-criminal. Brown has not satisfied that standard here, as he makes no allegation that he is
actually innocent of the crime for which he was convicted, but instead asserts only that he is
‘innocent’ of being a career offender.”) (internal citation omitted), cert. denied, 133 S. Ct. 201
(2012); Selby v. Scism, 453 F. App’x 266, 268 (3d Cir. 2011) (per curiam) (“Selby does not
5
argue that he is innocent of the offense for which he was convicted; he argues that he is
“innocent” of a sentencing enhancement because of an intervening change in law. Accordingly,
the exception described in In re Dorsainvil does not apply.”); Robinson v. Hollingsworth, No.
13-0101, 2013 WL 141441, at *2 (D.N.J. Jan. 11, 2013) (“Section 2255 is not inadequate or
ineffective for Robinson’s challenge to his sentencing enhancement as a career offender,
however, because he does not contend that, as a result of a Supreme Court decision issued
subsequent to his § 2255 motion, the conduct for which he was convicted - possession with
intent to distribute cocaine, is not non-criminal.”); Crawford v. United States, No. 12-1545, 2012
WL 5199167, at *5 (D.N.J. Oct. 19, 2012) (“The safety valve under § 2255 does not apply when
an inmate challenges the enhancement of his sentence as Petitioner does here.”). Accordingly,
this Court lacks jurisdiction to consider the instant habeas petition filed under 28 U.S.C. § 2241.
Whenever a civil action is filed in a court that lacks jurisdiction, “the court shall, if it is in
the interests of justice, transfer such action . . . to any other such court in which the action . . .
could have been brought at the time it was filed.” 28 U.S.C. § 1631. Petitioner has already
raised issues pertaining to the use of his 1972 conviction to classify him as a career offender in
his 1995 conviction. Therefore, this Court finds that it is not in the interest of justice to transfer
this petition to the United States Court of Appeals for the Seventh Circuit as a request for leave
to file a second or successive § 2255 motion.
Petitioner has also requested the appointment of counsel. (See Dkt. No. 7.) He does not
have a constitutional right to counsel in habeas proceedings. See Reese v. Fulcomer, 946 F.2d
247, 263 (3d Cir. 1991), superseded on other grounds by statute, 28 U.S.C. § 2254. However,
18 U.S.C. § 3006A(a)(2)(B) provides that the court has discretion to appoint counsel where “the
court determines that the interests of justice so require . . .” In Reese, the Third Circuit explained
6
that in determining whether counsel should be appointed, a court “must first decide if the
petitioner has presented a nonfrivolous claim and if the appointment of counsel will benefit the
petitioner and the court. Factors influencing a court’s decision include the complexity of the
factual and legal issues in the case, as well as the pro se petitioner’s ability to investigate facts
and present claims.” Reese, 946 F.2d at 263-64. In this case, the Court finds that the
appointment of counsel is not warranted as this Court lacks jurisdiction to consider the habeas
petition.
IV.
CONCLUSION
For the foregoing reasons, the habeas petition will be dismissed due to a lack of
jurisdiction. An appropriate order will be entered.
DATED: November 20, 2013
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?