MCINTOSH v. SHARTLE
Filing
17
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/3/2012. (TH, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES McINTOSH,
a/k/a Karim Bey,
Petitioner,
v.
J.T. SHARTLE,
Respondent.
:
:
:
:
:
:
:
:
:
:
Civil Action No. 12-2240 (JBS)
OPINION
APPEARANCES:
Petitioner pro se
James McIntosh
FCI Fairton
P.O. Box 420
Fairton, NJ 08320
Counsel for Respondent
Elizabeth Ann Pascal
Assistant U.S. Attorney
401 Market Street
P.O. Box 2098
Camden, NJ 08101
SIMANDLE, Chief Judge
Petitioner James McIntosh, a prisoner currently confined at
the Federal Correctional Institution at Fairton, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241.1
1
The sole respondent is Warden J. T. Shartle.
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ... .
Because it appears from a review of the parties’ submissions
that this Court lacks jurisdiction, the Petition will be
dismissed.
I.
BACKGROUND
Following a jury trial, Petitioner James McIntosh was
convicted in the U.S. District Court for the Eastern District of
Pennsylvania of Conspiracy to Interfere with Interstate Commerce
by Robbery, in violation of 18 U.S.C. § 1951; Interference with
Interstate Commerce by Robbery, in violation of 18 U.S.C. § 1951;
and Using and Carrying a Firearm during a Crime of Violence, in
violation of 18 U.S.C. § 924(c)(1).
See United States v.
McIntosh, Criminal No. 97-203-2 (E.D. Pa.).2
On March 27, 1998, the trial court sentenced Petitioner, as
a career offender, to a 262-month term of imprisonment for the
conspiracy and robbery convictions and a consecutive 60-month
term for the firearms offense.
Id.
(Docket Entry No. 265).
In
calculating Petitioner’s sentence, and over Petitioner’s
objection, the trial court determined that a 1981 state
conviction for simple assault qualified Petitioner for sentencing
as a career offender under United States Sentencing Guidelines
§ 4B1.1.3
2
Petitioner successfully appealed that decision and the
The offense conduct occurred on September 30, 1996.
3
Pursuant to U.S.S.G. § 4B1.1(a), a defendant is a career
offender if, inter alia, he has at least two prior felony
convictions of a “crime of violence.” With regard to the
2
U.S. Court of Appeals for the Third Circuit remanded the case for
resentencing on the career offender determination.
See U.S. v.
Tucker, 187 F.3d 627 (3d Cir. 1999) (Table); see generally U.S.
v. McIntosh, 58 F.Supp.2d 612 (E.D. Pa. 1999).
On remand, in considering the applicability of the career
offender provision, the trial court did not consider the 1981
simple assault conviction, which had been imposed more than 15
years before the federal offense conduct and with respect to
which there was no evidence that Petitioner had served any part
of that sentence within the requisite 15-year period.
The trial
court did consider, however, a 1984 state simple assault
conviction, introduced for the first time on remand, for which
Petitioner had been sentenced to serve not less than six months
nor more than twenty-three months, finding that the 1984 simple
assault conviction constituted a “crime of violence” subjecting
Petitioner to sentencing as a career offender.
The trial court
applicable time period, U.S.S.G. § 4A1.2(e)(2) provides 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.
The trial court also relied upon a 1980 state robbery
conviction for which Petitioner received a seven-to-fourteen year
sentence. Petitioner did not dispute the propriety of the trial
court’s consideration of that sentence.
3
imposed the same sentence it had previously imposed.
58
F.Supp.2d 612.
An Amended Judgment of Conviction was entered on
July 28, 1999.
U.S. v. McIntosh, Crim. No. 97-203-2 (Docket
Entry No. 291) (E.D. Pa.).
Petitioner again appealed, arguing that the trial court had
exceeded the Third Circuit’s mandate on remand by considering new
evidence relating to his status as a career offender and by
considering evidence that had not been identified in the original
pre-sentence report.
(Motion to Dismiss, Counsel Decl. Ex. H
(McIntosh’s Brief in Appeal No. 99-1628 (3d Cir.))).
of Appeals affirmed the sentence.
(3d Cir. 2000) (Table).
The Court
U.S. v. McIntosh, 225 F.3d 651
The Court of Appeals denied Petitioner’s
motion for rehearing en banc and issued its mandate on September
15, 2000.
On June 9, 2003, Petitioner filed in the trial court his
first motion to vacate his sentence under 28 U.S.C. § 2255.
Crim. No. 97-203-2 (Docket Entry No. 335) (E.D. Pa.).
The motion
was denied without prejudice by Order entered July 3, 2003.
Id.
(Docket Entry No. 341).
On May 18, 2004, Petitioner filed in the trial court his
second motion to vacate his sentence under 28 U.S.C. § 2255.
(Docket Entry No. 347).
Id.
By Order entered September 15, 2004, the
trial court denied the motion.
Id. (Docket Entry No. 351).
On
November 2, 2004, the trial court denied Petitioner’s motion to
4
alter or amend the Court’s judgment.
352, 360).
Id. (Docket Entries Nos.
The Court of Appeals for the Third Circuit denied
Petitioner’s request for a certificate of appealability.
U.S. v.
McIntosh, No. 04-4297 (3d Cir.).
On August 1, 2008, Petitioner filed yet another motion to
vacate, set aside, or correct sentence under § 2255, arguing that
he was improperly classified as a career offender and that his
counsel was ineffective for failing to investigate and challenge
application of the career offender guideline.
U.S. v. McIntosh,
Criminal No. 97-203-2 (E.D. Pa.) (Docket Entry No. 454).
At the
same time, petitioner filed a motion to modify his sentence
pursuant to 18 U.S.C. § 3582(c).
Id. (Docket Entry No. 456).
The trial court denied these motions, as comprising an
impermissible second or successive 2255 petition, and denied a
certificate of appealability.
Id. (Docket Entry No. 465).
The
Court of Appeals also denied a certificate of appealability and
otherwise affirmed.
See U.S. v. McIntosh, No. 08-4699 (3d Cir.).
On November 20, 2009, Petitioner filed a motion to recall
the mandate in his direct appeal.
(3d Cir.).
U.S. v. McIntosh, No. 99-1678
Petitioner argued that he was “actually innocent” of
being a career offender, on the theory that simple assault is not
a crime of violence within the meaning of U.S.S.G.
5
§ 4B1.2(a)(1),4 citing in support a number of recent Supreme
Court and Third Circuit cases, including Begay v. United States,
553 U.S. 137 (2008),5 Chambers v. United States, 555 U.S. 122
(2009), Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005), United
States v. Otero, 502 F.3d 331 (3d Cir. 2007), and United States
v. Midgley, 218 Fed.Appx. 117 (3d Cir. 2007).
On July 9, 2010,
the Court of Appeals rejected Petitioner’s arguments, stating:
Appellant’s motion to recall the mandate is denied.
Appellant argues that his 1984 Pennsylvania state
conviction of simple assault no longer qualifies as a
“crime of violence” for purposes of U.S.S.G. §§ 4B1.1
and 4B1.2 under the Supreme Court’s recent decisions in
Begay v. United States, 553 U.S. 137 (2008), and
Chambers v. United States, 129 S. Ct. 687 (2009).
Thus, he argues that he is “actually innocent” of being
a “career offender” under U.S.S.G. § 4B1.1 and
“actually innocent” of his sentence. Although the
Government concedes that appellant’s conviction no
longer constitutes a “crime of violence” under
prevailing law, we will not treat that concession as
conclusive given the discretionary and extraordinary
nature of the relief that appellant seeks. See
4
Section 4B1.2(a) defines a “crime of violence,” inter
alia, as a crime that “has as an element the use, attempted use,
or threatened use of physical force against the person of
another.”
5
In Begay, the Supreme Court considered whether driving
under the influence of alcohol under New Mexico law constituted a
“violent felony” within the meaning of the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B)(ii). The Court found that driving
under the influence of alcohol did not constitute a violent
felony that “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another,” because a DUI
offense does not involve purposeful violent and aggressive
conduct. 553 U.S. 137, 144-45. The other cases cited by
Petitioner similarly hold that an offense is “violent” only if it
involves purposeful, rather than reckless, conduct.
6
Calderon v. Thompson, 523 U.S. 538, 549 (1998); United
States v. Skandier, 125 F.3d 178, 183 (3d Cir. 1997).
We conclude to the contrary that appellant’s conviction
remains a “crime of violence” under prevailing law.
In United States v. Johnson, 587 F.3d 203 (3d Cir.
2009), we concluded, under the modified categorical
approach, that the appellant’s conviction of simple
assault did not constitute a crime of violence because
the charging instrument charged him merely with
“intentionally, knowingly, or recklessly” causing
bodily injury. Id. at 209 (emphasis added). Thus, we
concluded that the charging instrument did not permit
us to determine that the appellant’s conduct was
“purposeful,” as required by Begay, because we could
not determine whether the appellant necessarily
admitted conduct that was intentional or knowing, as
opposed to merely reckless, by pleading guilty to the
charge. See id. at 212-13. We held, however, that an
intentional or knowing simple assault would qualify as
“purposeful” conduct. See id. at 211-12. In this
case, the Pennsylvania state criminal complaint
charging appellant with simple assault alleges in
relevant part that appellant “did intentionally,
knowingly and recklessly cause bodily injury to
others.” Because the criminal complaint charged
appellant with conduct that was not only reckless, but
intentional and knowing as well, appellant necessarily
admitted to intentional and knowing conduct by pleading
guilty to the charge. Accordingly, appellant’s 1984
Pennsylvania state conviction for simple assault
remains a “crime of violence” notwithstanding Begay,
Chambers and Johnson, and we have no reason to take the
extraordinary step of recalling the mandate issued some
ten years ago in this appeal. For that reason,
appellant’s motion is denied.
U.S. v. McIntosh, No. 99-1678, Order (3d Cir. July 9, 2010).
On
August 17, 2010, the Court of Appeals denied Petitioner’s motion
for reconsideration.
In this Petition, filed in April 2012, Petitioner asserts
that he is “actually innocent” of the legal requirements for
sentencing as a career offender, because the 1984 simple assault
7
conviction is not a “crime of violence.”
upon Begay and Chambers.
Petitioner again relies
(Traverse, Docket Entry No. 13.)
Petitioner argues that he is entitled to relief under § 2241
because relief under § 2255 is “inadequate or ineffective” to
test the legality of his confinement.
Respondent has filed a Motion [11] to dismiss for lack of
jurisdiction, arguing that Petitioner’s claims are cognizable
only under § 2255.
In the alternative, Respondent argues that
Petitioner is collaterally estopped, by the Court of Appeals
decision denying the motion to recall the mandate on direct
appeal, from seeking review of the issue presented here, which is
identical to the issue presented to the Court of Appeals.6
Petitioner has opposed the Motion to dismiss, and he has
also filed a Motion [14] that this Court consider the “new
substantive rule” announced in United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (considering whether a conviction under North
Carolina’s Structured Sentencing Act qualifies as a predicate
“felony drug offense” under the enhanced sentencing provisions of
the federal Controlled Substances Act, 21 U.S.C.
§ 841(b)(1)(B)(vii)).
6
In addition, Respondent asserts that Petitioner has failed
to exhaust his administrative remedies. In light of this Court’s
disposition of the other arguments presented, it is not necessary
to address this argument.
8
II.
ANALYSIS
Respondent has moved to dismiss the Petition for lack of
jurisdiction.
See, e.g., Hill v. Williamson, 223 Fed.Appx. 179,
180 (3d Cir. 2007) (citing In re Galante, 437 F.2d 1164, 1165 (3d
Cir. 1971)).
As noted by the Court of Appeals for the Third Circuit in In
re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255 has
been the “usual avenue” for federal prisoners seeking to
challenge the legality of their confinement.
See also Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002); United States v.
McKeithan, 437 Fed.Appx. 148, 150 (3d Cir. 2011); United States
v. Walker, 980 F.Supp. 144, 145-46 (E.D. Pa. 1997) (challenges to
a sentence as imposed should be brought under § 2255, while
challenges to the manner in which a sentence is executed should
be brought under § 2241).
Motions under § 2255 must be brought
before the court which imposed the sentence.
§ 2255.
See 28 U.S.C.
A one-year limitations period applies to § 2255 motions.
See 28 U.S.C. § 2255(f).
Section 2255, however, contains a safety valve permitting
resort to § 2241, a statute without timeliness or successive
petition limitations, and which is filed in the court of
confinement, where “it appears that the remedy by motion is
inadequate or ineffective to test the legality of [the
9
prisoner’s] detention.”
See 28 U.S.C. § 2255(e).
In Dorsainvil,
the Third Circuit held that the remedy provided by § 2255 is
“inadequate or ineffective” 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.
The court emphasized, however, that its holding was not
intended to suggest that § 2255 would be considered “inadequate
or ineffective” merely because a petitioner is unable to meet the
stringent gatekeeping requirements of § 2255.
Id.
To the
contrary, the court was persuaded that § 2255 was “inadequate or
ineffective” in the unusual circumstances presented in Dorsainvil
only because it would have been a complete miscarriage of justice
to confine a prisoner for conduct that, based upon an intervening
interpretation of the statute of conviction by the United States
Supreme Court, may not have been criminal conduct at all.
Id. at
251-52.
In Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir.
2002), the Court of Appeals emphasized the narrowness of the
“inadequate or ineffective” exception.
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
10
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.
“Section 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 the amended
§ 2255.
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.
Thus, under Dorsainvil and its progeny, this Court would
have jurisdiction over Petitioner’s petition if, and only if,
Petitioner demonstrates: (1) his “actual innocence,” (2) as a
result of a retroactive change in substantive law that negates
the criminality of his conduct, (3) for which he had no other
opportunity to seek judicial review.
See Dorsainvil, 119 F.3d at
251-52; Cradle, 290 F.3d at 539; Okereke v. United States, 307
F.3d at 120; Trenkler v. Pugh, 83 Fed.Appx. 468, 470 (3d Cir.
2003).
Here, however, Petitioner does not assert that he is
“actually innocent” of the federal crimes of which he was
convicted; rather, he contends that he is actually innocent of
being a “career offender” subject to an enhanced sentence under
the U.S. Sentencing Guidelines.
More specifically, Petitioner
11
contends that his 1984 Pennsylvania simple assault conviction
does not constitute a “crime of violence” within the meaning of
U.S.S.G. § 4B1.1(a).
Such a challenge to a sentence does not
fall within the Dorsainvil exception.
In Okereke v. United States, supra, the Court of Appeals
found that a district court lacked jurisdiction under § 2241 to
consider a challenge to a sentence based upon a subsequent
Supreme Court case, Apprendi v. New Jersey, 530 U.S. 466 (2000),
in which the Supreme Court held that, other than the fact of
prior convictions, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury and proved beyond a reasonable doubt.
As the Apprendi
decision dealt only with sentencing, it did not fall within the
Dorsainvil exception.
The Court of Appeals for the Third Circuit
has consistently rejected attempts to challenge sentencing
enhancements under the Dorsainvil exception.
See, e.g., Johnson
v. Scism, 464 Fed.Appx. 87 (3d Cir. May 14, 2012); Green v.
Bledsoe, 466 Fed.Appx. 71 (3d Cir. March 7, 2012); Sorrell v.
Bledsoe, 437 Fed.Appx. 94 (3d Cir. July 14, 2011).
Accordingly,
it is clear that this Court lacks jurisdiction under s 2241 to
consider this Petition, which challenges only the propriety of
Petitioner’s sentence as a career offender, not the criminality
12
of his conduct.7
Instead, this Petition must be construed as a
successive § 2255 motion, over which this Court, in the district
of confinement, not conviction, also lacks jurisdiction.
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interest 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.
Because the Court of Appeals has
already considered and rejected, on the merits, the claim
presented in this Petition, it would not be in the interest of
justice to construe the Petition as one for leave to file a
second or successive § 2255 motion and to transfer it to the
Court of Appeals.
The Petition will be dismissed for lack of
jurisdiction.
Because Petitioner has failed to make a substantial showing
of the denial of a constitutional right, no certificate of
appealability shall issue.
7
Moreover, Petitioner cannot establish that he had no
earlier opportunity otherwise to present this challenge to his
conviction, as the Court of Appeals considered and rejected
Petitioner’s claim when it was presented through a motion to
recall the mandate on his direct criminal appeal.
13
III.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed without prejudice for lack of jurisdiction.
An
appropriate order follows.
s/ Jerome B. Simandle
Jerome B. Simandle
Chief Judge
United States District Court
Dated:
December 3, 2012
14
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?