Smith v. Thomas

Filing 15

MEMORANDUM re Petition for Writ of Habeas Corpus 1 and MOTION Correct Sentence 2 filed by Rodney Smith (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 11/12/14. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
RODNEY SMITH,
Petitioner
vs.
WARDEN THOMAS,
Respondent

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CIVIL NO. 1:CV-14-0763
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Rodney Smith has filed a pro se petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2241. The petition challenges the sentence he received in the United
States District Court for the Eastern District of Pennsylvania on two convictions in 2008 for
possession of a firearm and ammunition by a convicted felon. For the reasons that follow,
the petition will be dismissed for lack of jurisdiction.
Petitioner’s sentence was enhanced under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), for a 1980 Pennsylvania conviction under 35 Pa. Con. Stat. §
780-113(a)(30) for possession with intent to deliver. Petitioner argues this was error in light
of Descamps v. United States,

U.S.

, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013),

and the Third Circuit’s decision in United States v. Tucker, 703 F.3d 205 (3d Cir. 2012).1

1

Descamps established that in determining whether a defendant’s prior conviction serves
as a qualifying ACCA predicate offense, a sentencing court begins with a “categorical approach” of
comparing “the elements of the statute forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime” and does not look “to the particular facts underlying those
convictions” for the purpose of determining whether it is a violent crime or serious drug offense. Id.
at
, 133 S.Ct. at 2281 - 2283. However, were a “statute is ‘divisible’ — i.e., comprises of
multiple, alternative versions of the crime,” the sentencing courts takes a “modified categorical

II.

Background
On February 6, 2008, after a three-day trial, a jury verdict was
returned. The jury found Smith guilty [on two counts of
possession of a firearm and ammunition by a convicted felon in
violation of 18 U.S.C. § § 922(g)(1) and 924(e)]. On May 15,
2008, Smith’s sentencing hearing was held. At the hearing, the
Court determined that Smith’s total offense level was 40, and
that he was in a criminal category of VI, which led to an advisory
guideline range of 360 months to life imprisonment. Ultimately,
the Court followed the advisory guideline, and sentenced Smith
to 360 months, five years of supervised release, a fine of
$5,000, and a $300 special assessment fee. Smith filed appeal.
The Third Circuit affirmed both the conviction and sentence.2

Smith v. United States, No. 10-7073, 2012 WL 3135638, *1 (E.D. Pa. Aug. 2,
2012)(footnote added).
Smith filed a 28 U.S.C. § 2255 motion seeking to vacate his sentence. (Id.)
Among other arguments raised in the motion, Petitioner argued that his criminal history did
not justify invocation of the ACCA. (Id.) Specifically, he claimed his trial counsel and
appellate counsel were ineffective when they failed to object to the omission from the
indictment of the prior convictions relied upon for enhancement under the ACCA and when
they failed to challenge the prosecution’s assertion that the 1980 state-court conviction was
a drug offense for the purpose of the ACCA. (Id.)

approach” where it is “permitted to examine a limited class of documents to determine which of a
statute’s alternative elements formed the basis of the defendant’s prior conviction” Id. at
, 133
S.Ct. at 2284.
In Tucker, the Third Circuit held that a modified categorical approach was proper when
assessing whether a conviction under 35 Pa. Cons. Stat. § 780-113(a)(30) is a predicate offense
under the ACCA. Id.; see also United States v. Abbott, 748 F.3d 154, 156 (3d Cir. 2014) (“35 Pa.
Cons. Stat. § 780-113(a)(30) is divisible and, accordingly, the trial court’s use of the modified
categorical approach was proper.”).
2

See United States v. Smith, 362 F. App’x 297 (3d Cir. 2010)(nonprecedential).

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The district court denied the § 2255 motion as to claims of deficient
performance of his various counsel, in part, on the basis that “the offense in question
constituted a serious drug offense, as certified [copies of Petitioner’s felony convictions]
show that Petitioner Smith was convicted for possession with intent to deliver
methamphetamine.” (Id., at *2). The Third Circuit declined to issue a certificate of
appealability. See Doc. 13-2, ECF pp. 69-70, United States v. Smith, No. 12-3281 (3d Cir.
Apr. 1, 2013).
On April 1, 2014, the Third Circuit denied Smith’s request to file a second or
successive motion to vacate his sentence based on Descamps, supra, and Tucker, supra.
See Doc. 13-2, ECF p.79, In Re: Rodney Smith, No. 14-1382 (3d Cir. Apr. 1, 2014). The
court of appeals held that Smith’s claims based on these cases “do not rely on ‘(1) newly
discovered evidence that, if proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense; or (2) a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.’ 28 U.S.C. § 2255(h).” (Id.)
On April 21, 2014, Smith filed the instant petition.

III.

Discussion
In general, the presumptive means for federal prisoners to challenge their

convictions or sentences is a motion to vacate, set aside or correct filed pursuant to 28
U.S.C. § 2255 before the sentencing court. 28 U.S.C. § 2255(a). The defendant may only
invoke section 2241 when he shows under section 2255's “safety valve” provision in section
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2255(e), that the remedy under section 2255 would be “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e). “A § 2255 motion is inadequate or
ineffective 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 v. United States ex rel. Miner, 290
F.3d 536, 538 (3d Cir. 2002). “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.” Id. at 539. Rather, the “safety valve” under section 2255 is extremely
narrow and has been held to apply only in unusual situations, such as those in which a
prisoner has had no prior opportunity to challenge his conviction for conduct later deemed
to be non-criminal by an intervening change in law. Okereke v. United States, 307 F.3d
117, 120 (3d Cir. 2002)(citing In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)). If a
defendant improperly challenges his federal conviction or sentence under section 2241, the
petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164,
1165 (3d Cir. 1971); Hill v. Williamson, 223 F. App’x 179, 180 (3d Cir. 2007)
(nonprecedential).
In the instant petition, Smith argues he can rely on § 2241 because an
intervening change in the law renders him factually innocent of being a career offender.
Specifically, Smith claims his 1980 drug conviction does not qualify as a serious drug
offense for the purposes of the ACCA in light of Descamps v. United States,

U.S.

,

133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) and United States v. Tucker, 703 F.3d 205 (3d Cir.
2012).
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We must dismiss the § 2241 petition because we lack jurisdiction to consider
it. Under Dorsainvil, § 2255 is inadequate or ineffective if the petitioner had no prior
opportunity to challenge his conviction for actions later deemed to be non-criminal by an
intervening change in law. 119 F.3d at 251-52. However, Dorsainvil is not applicable here
because Smith is not challenging his conviction; he is instead claiming the sentencing court
erroneously held that his 1980 state drug conviction was a serious drug offense for the
purpose of using the conviction for the purpose of sentencing him as a career offender.
Dorsainvil does not apply in these circumstances. Okereke, 307 F.3d at 120-21 (holding
that a petitioner is barred from proceeding under § 2241 because his argument was based
on sentencing and did not render the conduct for which he was convicted not criminal).
See also Mikell v. Recktenwald, 545 F. App’x 82, 84 (3d Cir. 2013)(nonprecedential)(the
“simplest reason for denying the relief under § 2241 is that Dorsainvil allows relief under §
2241 only when a subsequent statutory interpretation renders a petitioner’s conduct no
longer criminal. [Petitioner] makes no allegation that he is actually innocent of the drug
crime for which he was convicted; he asserts only that his sentence was improper. The
Dorsainvil exception is therefore inapplicable, and relief under § 2241 is not
available”)(internal citations omitted); McIntosh v. Shartle, 526 F. App’x 150, 152 (3d Cir.
2013)(nonprecedential)(“McIntosh is challenging his designation as a career offender.
Thus, he does not fall within the exception created in Dorsainvil and may not proceed under
§ 2241.”); Green v. Bledsoe, 466 F. App’x 71, 72-73 (3d Cir. 2012)(nonprecedential)
(Dorsainvil exception did not allow petitioner to use section 2241 to pursue his claim of
being actually innocent of being a career offender since “Green makes no allegation that he

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is actually innocent of the crime for which he was convicted; he asserts only that his
sentence was improper”)(citing Okereke).
Because a sentencing claim such as presented by Smith is not the type of
claim that a federal prisoner may bring by way of a § 2241 habeas petition, the petition will
be dismissed.
An appropriate order follows.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: November 12, 2014

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