ROBINSON v. HOLLINGSWORTH

Filing 5

OPINION FILED. Signed by Judge Robert B. Kugler on 8/29/13. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
URAIN ROBINSON,

Civil No. 13-0101 (RBK)

Petitioner,
OPINION

v.
JORDAN R. HOLLINGSWORTH,
Respondents.

APPEARANCES:
URAIN ROBINSON, #39125-083
FCI Fort Dix
P.O. 2000
Fort Dix, NJ 08640
Petitioner Pro Se
KUGLER, District Judge:
Urain Robinson, a federal prisoner confined at FCI Fort Dix in
New Jersey, filed a Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241 challenging his imprisonment pursuant to a federal
sentence imposed in 2005 by the United States District Court for the
Eastern District of Virginia.

See United States v. Robinson, 205

F. App’x 978 (4th Cir. 2006).

This Court dismissed the Petition

for lack of jurisdiction.

Presently before this Court is Robinson’s

motion for reconsideration.
Court will deny the motion.

For the reasons expressed below, this

I.

BACKGROUND

In his § 2241 Petition, Robinson challenged his conviction and
sentence on three grounds:

(1) “a motion pursuant to 28 U.S.C. §

2255 is ‘inadequate or ineffective’ to test the legality of his
claims”; (2) “he is actually innocent of being a career offender,
under United States Sentencing Guidelines, Section 4B1.1"; and (3)
“the sentence otherwise applicable has expired, due to a
re-interpretation of the statute of conviction, Title 21 United
States Code, Section 841.”

(ECF No. 1 at 2.)

In his memorandum,

he explained that § 2255 was inadequate or ineffective because his
“claims [were] based on retroactively applicable new substantive
changes in a federal sentencing provision . . . that was either
foreclosed or not available to him during trial, appeal or first §
2255 motion.”

Id. at 9. (citations omitted).

He further argued

that he was actually innocent of being a career offender because his
prior Virginia juvenile and state convictions do not qualify as
predicates for enhancement under U.S.S.G. § 4B1.1, Begay v. United
States, 553 U.S. 137 (2008), and United States v. Johnson, 587 F.3d
203, 210 (3d Cir. 2009).
In an Opinion filed January 11, 2013, this Court dismissed the
Petition for lack of jurisdiction because 28 U.S.C. § 2255 was not
an inadequate or ineffective remedy to test the legality of
Robinson’s detention.

See 28 U.S.C. § 2255(e); see also In re
2

Dorsainvil, 119 F.3d 245, 250 (3d Cir. 1997).

This Court considered

Robinson’s argument that he was actually innocent of the career
offender sentencing enhancement on the basis of the Supreme Court’s
decision in Begay v. United States, which was not decided until after
he had pursued relief under § 2255. 1

Nevertheless, this Court found

that § 2255 was not inadequate or ineffective for this ground because
Robinson did 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 – became
non-criminal.

See Dorsainvil, 119 F. 3d at 250; Okereke v. United

States, 307 F.3d 117 (3d Cir. 2002).

This Court also noted that the

Third Circuit had affirmed the dismissal of § 2241 petitions for lack
of jurisdiction which challenged career offender enhancements.
See, e.g., Bowens v. United States, 508 F.App’x 96 (3d Cir. 2013)
(holding that section 2255 is not inadequate or ineffective remedy
for claim that Bowens was “improperly classified as a career offender
because he did not have the requisite two ‘prior felony
convictions’”); Johnson v. Scism, 464 F.App’x 87 (3d Cir. May 14,
2012) (holding that petitioner’s challenge to his designation as a

1

In Begay, the Supreme Court held on direct appeal that “New Mexico’s
crime of ‘driving under the influence’ falls outside the scope of
the Armed Career Criminal Act’s clause (ii) ‘violent felony’
definition” and remanded for resentencing. Begay, 553 U.S. at 148.
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career offender does not fall within Dorsainvil exception);
Middleton v. Ebbert, 467 F. App’x 105 (3d Cir. 2012) (same).
In his motion for reconsideration, Robinson relies on Pollard
v. Yost, 406 F.App’x 635, 638 n.5 (3d Cir. 2011).

Citing Pollard,

he argues that “‘the Third Circuit did not foreclose the possibility
that Dorsainvil could be applied to a petitioner who can show that
his or her sentence would have been lower but for a change in
substantive law made after exhaustion of the petitioner’s direct and
collateral appeals.’”

(Motion, ECF No. 4 at 2.)
II.

STANDARD OF REVIEW

A postjudgment motion “will be considered a Rule 59(e) motion
where it involves ‘reconsideration of matters properly encompassed
in a decision on the merits.’”

Osterneck v. Ernst & Whinney, 489

U.S. 169, 174 (1989) (quoting White v. New Hampshire Dept. of
Employment Security, 455 U.S. 445, 451 (1982)).

This Court

accordingly construes Robinson’s motion as a Rule 59(e) motion.
“The scope of a motion for reconsideration . . . is extremely
limited.”

Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011).

“Such

motions are not to be used as an opportunity to relitigate the case;
rather, they may be used only to correct manifest errors of law or
fact or to present newly discovered evidence.”

Id.

“[A] proper

Rule 59(e) motion . . . must rely on one of three grounds:

(1) an

intervening change in controlling law; (2) the availability of new
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evidence; or (3) the need to correct clear error of law or prevent
manifest injustice.”

Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir.

2013) (quoting Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)).
III.

DISCUSSION

Presumably, Robinson argues that alteration or amendment of the
Order dismissing his Petition for lack of jurisdiction is necessary
to correct an error of law and to prevent manifest injustice.
this end, he relies on Pollard.

To

In Pollard, the Third Circuit stated

that Dorsainvil did not foreclose the argument that § 2255 is an
inadequate or ineffective remedy for a § 2241 petitioner who can show
that, due to a change in the law after his direct and collateral
appeals regarding what constitutes a predicate crime for ACCA
purposes, his sentence should be lower.

(Motion, ECF No. 4 at 2.)

In Pollard, petitioner filed a § 2241 claiming that he was
actually innocent of a career offender classification due to a change
in the law subsequent to his appeals holding that the offense that
gave rise, in part, to his career offender classification, was no
longer a predicate offense.

The district court dismissed the

petition and Pollard appealed.

Although the Third Circuit affirmed

the dismissal of the § 2241 petition on the ground that § 2255 was
not an inadequate or ineffective remedy, the Pollard panel made the
following two statements in dicta:

“[W]e have yet to decide whether

innocence of the sentence may also be grounds for applying the §
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2255(e) savings clause,” Pollard, 406 F.App’x at 637-38, and “we do
not foreclose the possibility that Dorsainvil could be applied to
a petitioner who can show that his or her sentence would have been
lower but for a change in substantive law made after exhaustion of
the petitioner’s direct and collateral appeals under § 2255.”

Id.

at 638.
It may be argued that Dorsainvil did not foreclose the question
of “whether innocence of the sentence may also be grounds for applying
the § 2255 savings clause.”

Pollard, 406 F.App’x at 638.

But the

Third Circuit’s precedential holding in Okereke v. United States,
307 F.3d 117 (3d Cir. 2002), forecloses Robinson’s argument and
undermines the dicta in Pollard. 2

In Okereke, petitioner argued to

the district court that his sentence violated the Supreme Court’s
subsequent holding in Apprendi v. New Jersey, 530 U.S. 466 (2000),
because the judge increased his sentence on the basis of drug quantity
not found by a jury.

The Third Circuit emphasized that the district

court had “misconstrued the narrowness of our holding in In re
Dorsainvil.”

Okereke, 307 F.3d at 120.

The Third Circuit rejected

Okereke’s contention:
Unlike the intervening change in law in In re Dorsainvil
that potentially made the crime for which that petitioner
was convicted non-criminal, Apprendi dealt with
sentencing and did not render conspiracy to import heroin,
the crime for which Okereke was convicted, not criminal.
Accordingly, under our In re Dorsainvil decision, § 2255
2

Pollard did not cite Okereke.
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was not inadequate or ineffective for Okereke to raise his
Apprendi argument.
Id. at 121.
In this case, this Court found in its initial Opinion that an
intervening change in case law potentially affecting a career
offender enhancement does not render § 2255 an inadequate or
ineffective remedy.

This Court is bound by Okereke, and therefore

must reject Robinson’s contention, based on the non-precedential
decision in Pollard, that this Court committed an error of law.
Indeed, recent non-precedential decisions depart from the dicta in
Pollard, and follow Okereke instead.

For example, in McIntosh v.

Shartle, C.A. No. 13–1060, 2013 WL 1926394 (3d Cir. May 10, 2013),
the Third Circuit held that that § 2255 is not inadequate or
ineffective for petitioner’s claim that he is actually innocent of
being a career offender under Begay v. United States.

The Court

relied on Okereke for the proposition that “petitioner is barred from
proceeding under § 2241 because his argument was based on sentencing
and did not render the crime he was convicted of not criminal”, since
“[i]n Dorsainvil, [the Court] held that a defendant may proceed via
§ 2241 when a subsequent statutory interpretation renders the
defendant’s conduct no longer criminal.”

McIntosh at *1.

See also

Johnson v. Scism, 464 F.App’x 87 (3d Cir. 2012) (same); United States
v. Brown, 456 F.App’x 79 (3d Cir. 2012) (holding that § 2255 is not

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inadequate or ineffective for challenge to career offender
enhancement under Begay because Brown “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.”); Selby v. Scism, 453 F.App’x 266, 268 (3d Cir. 2011)
(“Selby does not 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.”)

This

Court will deny Robinson’s motion for reconsideration.
IV.

CONCLUSION

For the foregoing reasons, this Court denies Petitioner’s
motion to reconsider the Order dismissing his Petition.

s/Robert B. Kugler
ROBERT B. KUGLER, U.S.D.J.
DATED: August 29, 2013

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