Canty v. Thompson

Filing 28

MEMORANDUM re Petition for Writ of Habeas Corpus filed by Anthony Canty 1 (Order to follow as separate docket entry) Signed by Honorable William W. Caldwell on 02/17/15. (ma)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY CANTY,

:
:
:
:
:
:
:
:
:

Petitioner
vs.
WARDEN L.E. THOMPSON,
Respondent

No. 1:14-CV-01158
(Judge Caldwell)

M E M O R A N D U M
Anthony

Canty,

an

inmate

presently

confined

in

the

Allenwood United States Penitentiary, White Deer, Pennsylvania,
filed this pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.
and

traverse

The required filing fee has been paid. A response
having

been

filed,

the

petition

is

ripe

for

disposition. For the reasons set forth below, the petition for writ
of habeas corpus will be dismissed for lack of jurisdiction.
BACKGROUND
On
indictment,

June

1,

charging

2004,

a

federal

Canty

with

the

grand

jury

following

returned

offenses:

an
(1)

possessing with intent to distribute a controlled substance, namely
a mixture or substance containing cocaine base, in violations of 21
U.S.C.

§

841(a)(1)(Count

1);

(2)

possessing

with

intent

to

distribute a controlled substance, namely a mixture of heroin and
cocaine, in violations of 21 U.S.C. § 841(a)(1)(Count 2); (3)
possessing with intent to distribute a controlled substance, namely

a mixture or substance containing marijuana, in violations of 21
U.S.C. § 841(a)(1)(Count 3); (4) knowingly possessing firearms in
relation to drug trafficking crimes (specifically a loaded Ruger, 9
millimeter,

semi-automatic

pistol;

a

loaded

Stallard

Arms,

9

millimeter, semi-automatic pistol; and a loaded Lorcin .25 caliber
semi-automatic pistol) in violation of 18 U.S.C. 924(c)(Count 4);
(5) knowingly possessing a firearm having been previously convicted
of a felony in violation of 18 U.S.C. 922(g)(Count 5); and (6)
counterfeiting United States currency, in violation of 18 U.S.C. §
471 (Count 6). Doc. 11, Canty’s Addendum to Supplemental Memorandum
of Law, at 5-10.

On February 10, 2005 following a jury trial in the

United States District Court for the Northern District of Illinois,
Canty was convicted of all of the charges. Doc. 16-1, attachment to
Response to Petition, at 6.
A presentence report was prepared and the sentencing
guideline range was determined to be imprisonment for 360 months to
life. Doc. 16-2, attachment to Response to Petition, at 17-18.

The

presentence report revealed that Canty had the following seven
felony convictions before his arrest in January, 2004: (1) a 1980
convictions for aggravated battery and unlawful restraint; (2) a
1982 conviction for felony possession of cannabis; (3) a 1992

2

conviction for distribution of a controlled substance;1 (4) a 1992
conviction for possession with intent to distribute a controlled
substance; (5) a 1996 conviction for a controlled substance offense
in the second degree;2 (6) a second 1996 conviction for a controlled
substance offense in the second degree; and (7) a 1996 conviction
for defrauding a secured creditor. Id. Canty was found to be a
Career Offender under United States Sentencing Guideline (“USSG”) §
4B1.13 and as an Armed Career Criminal under 18 U.S.C. § 924(e)4 and

1

The record reveals that the maximum penalty for this offense
was 15 years. Doc. 16-2, attachment to Response to Petition, at 25.
2

The record reveals that the maximum penalty for this offense
was forty years. Doc. 16-2, attachment to Response to Petition, at
25.
3

The Career Offender provision, USSG § 4B1.1, states that
[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.

Canty was a career offender because he was at least 18 years
old, he was convicted of a controlled substance offense before the
federal district court in Illinois, and he had at least two prior
felony controlled substance convictions.

4

18 U.S.C. § 924(e) states in pertinent part that
[i]n the case of a person who violates 922(g) of this
(continued...)
3

USSG § 4B1.4. Id. The sentencing guideline range for either Canty’s
Career Offender or Armed Career Criminal status was the same: 360
months to life. Id.

On January 19, 2006, the district court

sentenced Canty to an aggregate term of imprisonment of 360 months
as follows: three concurrent 120 month terms of imprisonment on
Counts 1, 2 and 6; a 60 month concurrent term of imprisonment on
Count 3; a 60 month term of imprisonment on Count 4 to served
consecutively to Counts 1, 2 and 6; and a 180 month term of
imprisonment on Count 5 to be served consecutively to Count 4.

Doc.

16-1, attachment to Response to Petition, at 7.
On January 19, 2006, Canty filed an appeal to the Court of
Appeals for the Seventh Circuit with respect to the counterfeiting
charge in Count 6 of the indictment only. Doc. 16-2, attachment to
Response to Petition, at 1-2.

Canty argued that the district court

4

(...continued)
title and has three previous convictions by any court
. . . for a violent felony or a serious drug offense, or
both, committed on occasions different from one another,
such a person shall be fined under this title and
imprisoned not less than 15 years, and, notwithstanding
any other provision of law, the court shall not suspend
the sentence of, or grant a probationary sentence to,
such a person with respect to the conviction under
section 922(g).

A “serious drug offense” is defined in relevant part as “an
ofense under State law, involving the manufacturing, distributing,
or possessing with intent to manufacture or distribute, a
controlled substance . . . for which a maximum term of imprisonment
of ten years is prescribed by law.” 18 U.S.C. § 924(e)((2)(A)(ii).
4

erred by prohibiting him from testify regarding his motivation for
counterfeiting the currency. Id. On August 28, 2007, the Court of
Appeals issued a decision vacating Canty’s counterfeiting conviction
and remanding for a new trial with respect to that charge only. Id.;
United States v. Canty, 499 F.3d 729 (7th Cir. 2007).

In so doing

the Court of Appeals stated in part as follows:
Anthony Canty was caught with guns, drugs, and counterfeit
money in his apartment. When questioned by the police
about the money Canty did not deny that it was counterfeit
(a wise choice, the police having found the phony money
sitting in a printer tray in Canty’s apartment, on 8.5 x
11 inch pieces of paper, with genuine bills taped to the
screen of a nearby scanner). Instead, he explained that
he was printing the money to give the police for their use
as “flash money” in undercover drug operations. Canty was
not just feeling philanthropic; he later told the grand
jury that he was hoping to win over the good graces of the
police for consideration in pending drug charges Canty was
facing. Canty was tried for counterfeiting money . . . as
well as for numerous drug and gun charges not relevant to
this appeal. At trial, when Canty took the stand in his
own defense, the district court precluded him from
testifying about his motivation for printing the money.
The court reasoned that Canty’s story amounted to a public
authority defense, which Canty was trying to present
without giving the government the advance notice required
by FED. R. CRIM. P. 12.3. . . . The government concedes
that the court below erred, but it argues that the error
was harmless. . . . We agree with Canty that the district
judge improperly limited his testimony and that the error
was not harmless.
Id.

After being remanded, the United States filed a motion in the

district court to dismiss the counterfeiting charge which was
granted on April 15, 2008, and Canty was resentenced on March 25,
2009, after the preparation of an updated presentence report, to an

5

aggregate term of imprisonment of 360 months (120 months on Counts
1 and 2; a concurrent 60 months on Count 3; a consecutive sentence
of 60 months on Count 4; and a consecutive sentence of 180 months on
Count 5). Id.; Doc. 16-1, attachment to Response to Petition, at 9.
The updated presentence reported indicated that the sentencing
guideline range remained the same, i.e., 360 months to life. Doc.
16-2, attachment to Response to Petition, at 19.

At the time of

resentencing, Canty withdrew objections to his designation as an
Armed Career Criminal and Career Offender. Id.

Canty appealed the

sentence claiming that the district court failed to calculate his
sentence according to the advisory guidelines and on February 5,
2010, the Court of Appeals for the Seventh Circuit affirmed Canty’s
sentence. United States v. Canty, No. 09-1838, 2010 WL 395931, at *1
(7th Cir. Feb 5, 2010).
On December 20, 2010, Canty filed in the district court a
motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255. Doc. 16-1, attachment to Response to Petition, at 11.
Canty raised several claims, including that the district court
lacked subject matter jurisdiction, the district court abused its
sentencing discretion, certain underlying offenses did not carry a
maximum sentence of ten years, he was not an Armed Career Criminal,
his attorney provided him with ineffective assistance, and he was
actually innocent of a violation of the federal firearms statute.

6

Doc. 16-2, attachment to Response to Petition, at 5-18. He also
asked the district court to recalculate his offense level because of
the newly implemented 18:1 crack cocaine to powder cocaine ratio.
Id. The district court reviewed each of Canty’s claims and rejected
them on the merits. Id.

The district court declined to issue a

certificate of appealability. Id. at 32.
Canty filed an appeal of the district court’s denial of
his § 2255 motion and requested that the Court of Appeals for the
Seventh Circuit issue a certificate of appealability. Id. at 35.
The Court of Appeals on January 10, 2013, issued an order denying
the request. Id.

In so doing the Court stated that it reviewed the

final order of the district court and found no substantial showing
of the denial of a constitutional right. Id.

Subsequently, the

Court of Appeals for the Seventh Circuit denied two applications by
Canty for leave to file successive § 2255 motions. Id. at 36-38.

In

the first application, Canty sought authorization to file a § 2255
motion to challenge the district court’s imposition of a 60-month
consecutive term of imprisonment for his use of a firearm during a
drug offense (Count 4 of the indictment). Id.
application,

Canty

proposed

to

challenge

his

In the second
career

offender

enhancement. Id.
On June 17, 2014, Canty filed the instant petition for
writ of habeas corpus in which he claims the district court in

7

Illinois

lacked

subject

matter

jurisdiction

and

abused

its

sentencing discretion; he is actually innocent of the charges; and
the sentence imposed was illegal. All of the claims presently raised
by

Canty

were

previously

addressed

in

the

proceedings

in

the

Northern District of Illinois and the Seventh Circuit other than a
claim relating to the Armed Career Criminal provision. Canty argues
that he was not previously convicted of the requisite number of
serious drug offenses. Doc. 19, Traverse, at 2. He claims that under
the Armed Career Criminal provision the offenses had to involve a
certain amount of drugs and relies on 18 U.S.C. §3559(c)(2)(H)(ii),
specifically the definition of “serious drug offense.” Id.

This

argument is without any merit whatsoever because the definition of
“serious drug offense” in §3559 is not applicable to the Armed
Career Criminal provision but specifically states that it relates to
subsection (c) of 18 U.S.C. § 3559 relating to mandatory life
imprisonment for certain violent felonies.
Canty also contends that his arguments constitute “newly
discovered evidence.”

This claims is also devoid of merit because

the statutory provisions that were in existence at the time of his
conviction and original § 2255 filing cannot be considered new
evidence.

Furthermore, assuming that there was “new evidence” that

would not entitle him to proceed with a § 2241 habeas petition in
this district.

8

Discussion
A federal criminal defendant's conviction and sentence are
subject to collateral attack in a proceeding before the sentencing
court pursuant to 28 U.S.C. § 2255.
Addonizio, 442 U.S. 178, 179 (1979).

E.g., United States v.
The United States Court of

Appeals for the Third Circuit has held that as to issues cognizable
by the sentencing court under § 2255, a motion under § 2255
"supersedes

habeas

corpus

and

provides

the

exclusive

remedy."

Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir.) (per curiam),
cert. denied, 409 U.S. 1046 (1972).

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)(per

curiam)(nonprecedential).
In the instant case, Canty clearly maintains that his
federal conviction violates his constitutional rights.

Canty is

clearly challenging his conviction and sentence based on alleged
“new evidence.” Thus, his proper avenue of relief is a section 2255
motion filed in the district court where he was convicted and
sentenced.
arguments

Canty is also challenging his conviction on the basis of
that

were

already

addressed

by

the

district

in

the

Northern District of Illinois and by the Court of Appeals for the

9

Seventh Circuit.
Section 2255 provides, in part, 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
court has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality of his
detention" (emphasis added).
A motion under § 2255 is "'inadequate or ineffective'"
only where it is established "'that some limitation of scope or
procedure would prevent a Section 2255 proceeding from affording the
prisoner a full hearing and adjudication of his claim of wrongful
detention.'"

Application of Galante, supra, 437 F.2d at 1165.

It

has been recognized that the burden is on the habeas petitioner to
allege or demonstrate inadequacy or ineffectiveness. See Id.; Cagle
v. Ciccone, 368 F.2d 183, 184 (8th Cir. 1966).

Furthermore, prior

unsuccessful § 2255 motions filed in the sentencing court are
insufficient in and of themselves to show that the motion remedy is
inadequate or ineffective.

Tripati v. Henman, 843 F.2d 1160, 1162

(9th Cir.), cert. denied, 488 U.S. 982 (1988); Litterio v. Parker,
369

F.2d

395,

396

(3d

Cir.

1966)

(per

curiam).

"It

is

the

inefficacy of the remedy, not a personal inability to utilize it,

10

that is determinative . . . ."

Garris v. Lindsay, 794 F.2d 722, 727

(D.C. Cir.) (emphasis added), cert. denied, 479 U.S. 993 (1986).
It is the petitioner's burden to prove that §2255 would be
an inadequate or ineffective remedy.

Reyes-Requena v. United

States, 243 F. 3d 893, 901 (5th Cir. 2001) (citing Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000)).

Canty has not met this burden.

He does not state that he has requested permission from the United
States Court of Appeals for the Seventh Circuit for leave to file a
successive petition relating to his “newly discovered” evidence
claim.

Moreover, to the extent that Canty has sought, and been

denied, permission by the Court of Appeals for the Seventh Circuit
to file a second § 2255 motion, section 2255 is not inadequate or
ineffective merely because Canty is unable to meet the gatekeeping
requirements for filing a second § 2255 motion. In re Dorsainvil,
119 F.3d at 251.
Thus, the court will dismiss Canty’s petition for a writ
of habeas corpus under 28 U.S.C. § 2241 for lack of jurisdiction.
Dismissal is without prejudice to any right Canty may have to seek
leave to file a second or successive § 2255 motion.
Finally, because Canty is not detained because of process
issued by a state court and the petition is not brought pursuant to

11

28 U.S.C. § 2255, no action by this court with respect to a
certificate of appealability is necessary.

/s/ William W. Caldwell
WILLIAM W. CALDWELL
United States District Judge
Date: February 17, 2015

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