PARKER v. HOLLINGSWORTH
Filing
2
OPINION. Signed by Judge Renee Marie Bumb on 2/19/2014. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________________
:
LINWOOD COLA PARKER,
:
: Civil Action No. 13-4791 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
J. HOLLINGSWORTH, et al.,
:
:
Respondents.
:
_______________________________________
:
This matter comes before the Court upon Petitioner’s § 2241
petition, see Docket Entry No. 1 (“Petition”), which was followed
by his filing fee.
See Docket Entry dated August 13, 2013.
Petitioner is a federal inmate currently confined at the FCI
Fort Dix, New Jersey.
See generally, Docket.
His imprisonment
resulted from the conviction and sentence rendered by the United
States District Court for the Eastern District of Virginia (“E.D.
Va.”).
See Docket Entry No. 1, at 3; see also USA v. Parker,
Crim. Action No. 07-0068 (RBS) (E.D. Va.).
[Petitioner was convicted] after a jury trial [on the
charges] of conspiracy to distribute and possess with
intent to distribute cocaine . . . ; possession with
intent to distribute cocaine . . . ; nine counts of
using communication facilities to commit violations of
the Controlled Substances Act . . . ; and [being a]
felon in possession of a firearm . . . . He was
sentenced to a total of 276 months’ imprisonment.[1]
1
Petitioner is asserting that, at trial, he was disputing
“the drug weight.” Instant Matter, Docket Entry No. 1, at 7.
United States v. Parker, 330 F. App’x 436, 437 (4th Cir.
2009).
Petitioner appealed, see Parker, Crim. Action No. 07-0068,
Docket Entry No. 149, and, on May 22, 2009, the Fourth Circuit
affirmed his conviction and sentence.
436.
See Parker, 330 F. App’x
On October 5, 2010, Petitioner filed his first § 2255
motion, together with his application for recusal of his trial
judge.
See Parker, Crim. Action No. 07-0068, Docket Entries Nos.
216 and 218.
The trial judge denied the motion for recusal, see
id., Docket Entries Nos. 220-21, as well as his § 2255 motion,
and declined to issue a certificate of appealability.
Docket Entries Nos. 240 and 241.
See id.,
When Petitioner appealed those
determinations, see Docket Entries Nos. 223 and 242, the Fourth
Circuit affirmed the district judge’s findings.
Entry No. 246.
See id., Docket
Petitioner than sought to reopen his § 2255
matter by an application styled as a Rule 60 motion.
Docket Entry No. 249.
See id.,
That application was denied by the trial
judge, see Docket Entry No. 250, triggering Petitioner’s appeal
that determination.
See id., Docket Entry No. 250.
The Fourth
Circuit noted that the Rule 60 application was a de facto second/
successive § 2255 motion filed without leave, and denied it on
that ground, as well as on the grounds set forth by the trial
judge in denying him a certificate of appealability.
Docket Entries Nos. 255-57.
See id.,
Petitioner then filed a de facto
third § 2255 motion, and had that application was denied.
2
See
id., Docket Entries Nos. 258-62.
The latest Fourth Circuit
determination in this chain of § 2255 matters was entered on June
17, 2013, see id., Docket Entry No. 257, while the latest E.D.
Va.’s decision by the District Court for the Eastern District of
Virginia was entered on September 26, 2013.
Entry No. 262.2
See id., Docket
However, on August 9, 2013, while his de facto
third § 2255 motion was still pending before the District Court
for the Eastern District of Virginia, Petitioner already
commenced the case at bar.
Alleging that he is “actually innocent” of the crimes he was
convicted of (because he is still disputing the exact amount of
cocaine involved in his offenses), Petitioner now seeks § 2241
relief by relying on Alleyne v. United States, 133 S. Ct. 2151
(2013)).3
See Instant Matter, Docket Entry No. 1, at 6, 10.
2
In addition, Petitioner sought certiorari with regard to
his direct appeal and his § 2255 challenges. Both applications
were denied. See Parker v. United States, 132 S. Ct. 2731
(2012); Parker v. United States, 558 U.S. 927 (2009).
3
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court held that a fact must be submitted to a jury and
found beyond a reasonable doubt if it increases a defendant’s
statutory mandatory maximum sentence. Alleyne extended the same
to the fact that increased a statutory mandatory minimum sentence
i.e., brandishing a firearm. Just yesterday, the Court of
Appeals confirmed that Alleyne does not apply retroactively to
cases on collataeral review. See United States v. Galindez, 2014
U.S. App. LEXIS 2887, at *5 (Feb. 18, 2014) (“Alleyne . . . has
not been made retroactively applicable by the Supreme Court”)
(citing Simpson v. United States, 721 F.3d 875, 876 (7th Cir.
2013)). Prior to Galindez, numerous courts had held the same.
See United States v. Stanley, 2013 U.S. Dist. LEXIS 98943 (N.D.
Okla. July 16, 2013); United States v. Eziolisa, 2013 U.S. Dist.
3
In support of his jurisdictional § 2241 position, Petitioner
maintains that the case at bar “is one that is on all four with
the actual innocence exception and the inability to bring
[Petitioner’s] claim previously as [it was in] In re Dorsainvil,
199 F.3d [245] (3d Cir. 1997).”
Id. at 10.
Petitioner errs.
His attack on his sentence is not cognizable in a § 2241 review.
After his conviction becomes final, a federal prisoner
generally may challenge the legality of his conviction or
sentence only through a motion filed pursuant to § 2255.
See
Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002).
However, the “safety valve” clause of § 2255 allows a petitioner
to seek a writ of habeas corpus under § 2241 in the “rare case”
in which a § 2255 motion would be “inadequate or ineffective to
test the legality of his detention.”
Dorsainvil, 119 F.3d at 249-50.
28 U.S.C. § 2255(e); In re
“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 . . . § 2255.”
539 (3d Cir. 2002).
Cradle v. Miner, 290 F.3d 536,
Rather, a § 2255 motion is inadequate or
ineffective “only if it can be shown that some limitation of
scope or procedure would prevent a section 2255 proceeding from
LEXIS 102150 (S.D. Ohio July 22, 2013); Affolter v. United
States, 2013 U.S. Dist. LEXIS 104835 (E.D. Mo. July 26, 2013).
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affording the prisoner a full hearing and adjudication of his
claim of wrongful detention.”
United States v. Brooks, 230 F.3d
643, 648 (3d Cir. 2000) (quoting Leguillou v. Davis, 212 F.2d
681, 684 (3d Cir. 1954) (internal quotation marks omitted).
A § 2255 motion is inadequate or ineffective to test the
legality of a conviction where: (a) a petitioner “is being
detained for conduct that has subsequently been rendered
non-criminal by an intervening Supreme Court decision”; and (b)
the petitioner is barred from filing a§ 2255 petition.
In re
Dorsainvil, 119 F.3d at 252 (emphasis supplied).
Here, Petitioner’s core conducts underlying his conviction
(i.e., conspiracy to distribute cocaine, possession of cocaine
with intent to distribute, using communication facilities to
commit violations of the Controlled Substances Act, being a felon
in possession of a firearm, etc.) were and still are criminal
offenses.
Nothing in Allayne decriminalized these activities.
Accord Galindez, 2014 U.S. App. LEXIS 2887, at *5 (“[Petitioner]
does not explain how his claims rely on Alleyne”).
Since his
dispute is limited solely to the amount of cocaine involved in
his offenses, he cannot avail himself to the “safety valve,” and
his jurisdictional reliance on Alleyne is wholly misplaced.
Alleyne is an extension of Apprendi v. New Jersey, 530
U.S. 466 . . . . Because we have held that Apprendi
claims must be brought pursuant to § 2255, not § 2241,
see Okereke, 307 F.3d at 120-21, it follows that
Alleyne claims must be brought pursuant to § 2255 as
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well. Thus, the District Court [ruled correctly] in
dismissing [Petitioner’s] § 2241 petition for lack of
jurisdiction.
Jackman v. Shartle, 2013 U.S. App. LEXIS 17281, at *3-5 (3d Cir.
Aug. 20, 2013) (footnotes omitted).
In light of the foregoing, the Court is obligated to dismiss
the Petition for lack of jurisdiction.4
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: February 19, 2014
4
Moreover, this Court finds it not in the interest of
justice to construe the Petition as a mislabeled and improperly
filed application to the Fourth Circuit seeking leave to file a
second/successive § 2255 motion, since the Fourth Circuit already
affirmed the E.D. Va.’s denial of Petitioner’s two prior § 2255
motions and noted that his second such motion was filed without
leave. That being said, no statement made in this Opinion or the
Order filed herewith prevents Petitioner from seeking such leave
from the Fourth Circuit on his own. This Court expresses no
opinion as to substantive or procedural propriety or impropriety
of such an application in the event Petitioner elects to file it.
6
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