Gray v. Spaulding

Filing 9

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry) Signed by Honorable William W. Caldwell on 6/6/17. (ma)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
MAHLI GRAY,

:
:
:
:
:
:
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Petitioner
vs.
CAPT S. SPAULDING,
Respondent

CIVIL NO. 1:CV-15-1759
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Mahli Gray, a federal inmate, when he was housed at Allenwood Federal

Correctional Complex, in White Deer, Pennsylvania, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.1 The petition asserts that his sentence was
improperly enhanced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
relying on Johnson v. United States,

U.S.

, 135 S.Ct. 2551, 192 L.Ed.2d 569

(2015). Johnson was made retroactive to cases on collateral review by Welch v. United
States,

U.S.

, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Also pending before the

Court is Gray’s motion to amend his Petition.
For the reasons set forth below, the Petition will be dismissed without
prejudice for lack of jurisdiction, and the motion to amend will be dismissed as moot.
II.

Relevant Law
As a general rule, a federal prisoner may challenge his conviction or sentence

only by means of a motion under 28 U.S.C. § 2255 brought before the sentencing court,
1

Gray is presently housed at USP-Lee, in Pennington Gap, Virginia.

and this remedy typically supersedes the writ of habeas corpus. See Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002) (a motion filed pursuant to § 2255 is the
presumptive means for challenging a federal conviction); In re Dorsainvil, 119 F.3d 245,
249 (3d Cir. 1997). Prisoners who have already filed a § 2255 motion, may file a “second
or successive motion” provided that “a panel of the appropriate court of appeals” has
certified that the motion contains “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 “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).
Thus, with limited exceptions, a habeas petition challenging a federal
prisoner’s conviction or sentence pursuant to 28 U.S.C. § 2241 may not be entertained
unless a § 2255 motion would be “inadequate or ineffective” to test the legality of the
petitioner’s detention. See 28 U.S.C. § 2255(e); Gardner v. Warden Lewisburg USP, 845
F.3d 99, 102 (3d Cir. 2017). In considering what it means to be “inadequate or ineffective,”
the Third Circuit has stated that a federal prisoner should be permitted to seek relief under
§ 2241 “only where the petitioner demonstrates that some limitation or procedure would
prevent a § 2255 proceeding from affording him a full hearing and adjudication of his
wrongful detention claim.” Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002)
(citations omitted). Such situations are rare. The Third Circuit has applied this “safety
valve” only where a prisoner is in the unusual position of having no earlier opportunity to

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challenge his conviction or “is being detained on conduct that has subsequently been
rendered non-criminal by an intervening Supreme Court decision.” See Okereke, 307 F.3d
at 120 (citing In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997)).
“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.” Cradle, 290 F.3d
at 539 (citations omitted). “It is the inefficacy of the remedy, not the personal inability to
use it, that is determinative.” Id. at 538 (citation omitted). Section 2255(e), the safety-valve
clause, “exists to ensure that petitioners have a fair opportunity to seek collateral relief, not
to enable them to evade procedural requirements.” Id. at 539.

III

Background
On July 29, 2010, a jury in the United States District Court for the Eastern

District of Pennsylvania convicted Gray of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e).2 Gray had three convictions that
qualified him for an enhanced sentence under the ACCA. (ECF No. 1, Pet.). On May 25,
2011, he was sentenced as an armed career criminal to a term of 210 months’
imprisonment followed by five years of supervised release. See ECF No. 6-1, pp. 3 - 8. On
January 24, 2013, the Third Circuit summarily affirmed Gray’s conviction. (ECF No. 1, p.
2).
2

The Court takes judicial notice of the docket in Gray’s criminal proceeding. See United
States v. Gray, No. 09-CR-00150 (E.D. Pa.) which is viewable via the federal Judiciary’s Public
Access to the Court Electronic Records (PACER) Service at https://www.pacer.gov.

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On February 11, 2014, Gray filed with the sentencing court a motion to
vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. That motion was
denied on December 19, 2014. See United States v. Gray, No. 09-CR-150-1, 2014 WL
7271247 (E.D. Pa. Dec. 19, 2014). On September 11, 2015, the Third Circuit denied
Gray’s request for a certificate of appealability. (ECF No. 6-1, p. 11).
On April 29, 2016, Gray, with the assistance of counsel, filed with the Third
Circuit an application pursuant to 28 U.S.C. § 2244 and § 2255 to file a second or
successive motion under 28 U.S.C. § 2255 based on the Supreme Court’s decisions in
Welch and Johnson. On June 29, 2016, the Third Circuit granted the application, In re:
Mahli Gray, C.A. No. 16-2068 (3d Cir. June 29, 2016), and directed that Gray’s successive
2255 motion be transferred to the United States District Court for the Eastern District of
Pennsylvania. Gray subsequently filed a second motion in the Eastern District pursuant to
28 U.S.C. § 2255, seeking relief under Johnson, supra, and United States v. Mathis,
U.S.

, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). See United States v. Gray, No. 09-

CR-0150 (E.D. Pa.) (ECF No. 95). On May 5, 2017, the Government filed a response to
Gray’s motion. Id., ECF No. 99. The motion is pending in the Eastern District.

IV.

Discussion
It is clear that Gray is challenging the validity of his May 25, 2011, sentence

imposed by the Eastern District of Pennsylvania. Thus, he must raise such a challenge I
the sentencing court under 28 U.S.C. § 2255 unless he demonstrates that the remedy
under § 2255 is “inadequate or ineffective.” See 28 U.S.C. § 2255(e).
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Petitioner does not allege facts to bring him within the Dorsainvil exception.
He does not allege that he had no earlier opportunity to challenge his conviction for a crime
that an intervening change in substantive law may negate. Rather, Gray’s claim is focused
on the alleged impropriety of his sentence, not the offense for which he was convicted. We
therefore lack jurisdiction to consider his petition. See Scott v. Shartle, 574 F. App’x 152,
155 (3d Cir. 2014)(nonprecedential)(“[B]ecause [petitioner] is challenging his career
offender designation and is not claiming that he is now innocent of the predicate offense,
he does not fall within the ‘safety valve’ exception created in In re Dorsainvil and cannot
proceed under § 2241.”) . Welch made Johnson retroactive to cases on collateral review,
but as noted by the Third Circuit, Ҥ 2241 is not available for an intervening change in the
sentencing laws.” Pearson v. Warden Canaan USP,

F. App’x

,

, 2017 WL

1363873, at *2 (3d Cir. 2017)(nonprecedential)(citing Okereke, 307 F.3d at 120-21).
As Gray has successfully obtained permission to file a second or successive
§ 2255 motion raising a Johnson claim, which is currently before the sentencing court, we
need not consider transferring the petition to the Third Circuit to be treated as an
application to file a second or successive 2255 motion. We will instead simply dismiss the
petition.
We will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: June 6, 2017

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