Peng v. Ebbert

Filing 5

MEMORANDUM re Petition for Writ of Habeas Corpus 1 filed by You Zhong Peng (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 08/12/14. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
YOU ZHONG PENG,
Petitioner
vs.
WARDEN DAVID EBBERT,
Respondent

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CIVIL NO. 1:CV-14-1370
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se petitioner, You Zhong Peng, a prisoner confined at the United

States penitentiary in Canaan, Pennsylvania, brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Peng challenges his 1997 convictions in the United
States District Court for the Eastern District of New York for conspiracy to engage in
hostage taking, one count of hostage taking in which death resulted, two additional counts
of hostage taking and two counts of using a firearm in connection with a crime of violence.
In his Petition, Peng presents three claims: (1) his trial counsel was
ineffective by failing to present the expert testimony of a psychiatrist as to Petitioner’s
mental condition which made him easily dominated by other members of his group; (2) the
trial court abused its discretion by not allowing Peng’s psychiatrist to testify to his mental
illness and brain disorder; and (3) the trial court abused its discretion when it sentenced
Petitioner the same day he was convicted and without the benefit of a pre-sentence
investigation report being completed.

We conclude Peng has failed to show that a motion under 28 U.S.C. § 2255
is inadequate or ineffective to test the legality of his detention. His § 2241 petition will
therefore be summarily dismissed for lack of jurisdiction pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.A. foll. §
2254 (West Supp.).1

II.

Background
On September 28, 1995, Peng, along with four other individuals who were all

members of an Asian gang called the “Plum Blossom Boys,” were indicted in the Eastern
District of New York for various hostage and firearms offenses.2
On April 3, 1997, following a jury trial, Peng was convicted of conspiracy to
engage in hostage taking, one count of hostage taking in which death resulted, two
additional counts of hostage taking and two counts of using a firearm in connection with a
crime of violence. On that same day the district court sentenced Peng to a mandatory
term of life imprisonment on the hostage-takings counts (mandatory because one of the
hostage takings resulted in death) and to a consecutive twenty-five-year term of
imprisonment on the firearms offenses.
On direct appeal, Peng challenged the district court’s refusal to grant post-

1

Under Rule 1(b) of the Rules Governing Section 2254 Cases in the United States
District Courts, 28 U.S.C.A. foll. § 2254 (West Supp.), the rules governing petitions under 28
U.S.C. § 2254 can be applied to section 2241 petitions. Rule 4 of the section 2254 rules
permits summary dismissals.
2

In this background, the court takes judicial notice of information gleaned from the
docket sheets in United States v. Chen, 1:95-CR-00870-ERK-4 (E.D.N.Y.) and Peng v.
United States, 1:98-CV-7697-ERK (E.D.N.Y.), available through the federal court’s online
Public Access to Court Electronic Records (PACER) system at http://www.pacer.gov/.

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trial neurological and psychiatric examinations and an evidentiary hearing based on
Peng’s Rule 33 motion for a new trial. His conviction was affirmed on appeal on
December 15, 1997.3 See United States v. Fu Xin Chen, 131 F.3d 132 (2d Cir. 1997).
In December 1998, Peng filed a motion to vacate pursuant to 28 U.S.C. §
2255, challenging the lower court’s refusal to appoint a psychiatrist during trial as an
expert for the defense and making a claim of ineffectiveness of trial counsel. On July 13,
1999, the United States District Court for the Eastern District of New York denied Peng’s
motion. Petitioner’s request for a certificate of appealability was denied on October 29,
1999. On May 3, 2000, the Second Circuit denied Peng’s motion for a certificate of
appealability.
On April 7, 2003, Petitioner filed a motion pursuant to Fed. R. Civ. P. 60(b).
In his motion, Peng asserted that he had obtained newly discovered evidence: identical
affidavits of co-defendants, sworn to on April 18, 2002, that supported the duress defense
he presented at trial and a claim of actual innocence.4 On January 31, 2005, the trial court

3

Peng appealed from the trial court’s denial of his motion for a new trial pursuant to
Fed. R. Crim. P. 33 so he could obtain further psychiatric and neurological examinations to
support his duress defense.
4

Peng has submitted two identical affidavits of his co-defendants, both dated April
18, 2002, in this matter as well. In relevant part, they assert that:
Peng, with a weak mind, will and character, and was pressured
and coerced under the circumstances to whatever extent his
involvement was alleged, to committing these crimes, and that
You Zhong Peng did not appear to have the capacity or will to
commit any of these alleged actions on his own, and that his
demeanor and attitude was one of following under pressure, and
that it was possible that physical violence would have occurred

(continued...)

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denied Peng’s motion, noting that if Petitioner wished to pursue postconviction relief a
second time he had to seek permission from the Court of Appeals.
Undeterred, in January 2005, Peng then filed a motion for a modification of
his sentence. On May 31, 2006, the court denied the motion. Peng then filed a notice of
appeal. On June 1, 2007, the Second Circuit denied his appeal. Peng filed the instant
section 2241 petition on July 6, 2014.

III.

Discussion
“A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the means to

collaterally challenge a federal conviction or sentence,” Massey v. United States, 581 F.3d
172, 174 (3d Cir. 2009), and the motion must be presented to the sentencing court. See
28 U.S.C. § 2255(a) (providing that a defendant “may move the court which imposed the
sentence”).
A defendant may invoke section 2241, but only when he shows under
section 2255's “safety valve” provision, 28 U.S.C. § 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

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(...continued)
to either him and, or his family if he had attempted or flee and
notify the police.

See Doc. 1, ECF pp. 23-24.

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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 539.5 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).
Applying the foregoing principles here, the court finds that Peng is raising
claims in the pending section 2241 petition that clearly fall within the purview of section
2255 as they challenge his conviction and sentence. As noted above, he may not raise his
present claims in a section 2241 petition without establishing that the remedy by motion
under § 2255 would be inadequate or ineffective. And that remedy is not inadequate or

5

Section 2255's “gatekeeping” provision, section 2255(h), prohibits a second or
successive 2255 motion unless the following requirements are met:
(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.

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ineffective merely because he cannot meet the gatekeeping requirements for the filing of a
second 2255 motion. We therefore lack jurisdiction over his 2241 petition.
An appropriate order follows.

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

Date: August 11, 2014

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