Sterling v. Ebbert

Filing 8

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 11/14/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUSTIN STERLING,
Petitioner

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v.
DAVID J. EBBERT,
Respondent

CIVIL ACTION NO. 1:CV-15-2380
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se petitioner, Justin Sterling, an inmate at USP-Atwater, in

Atwater, California, filed this petition under 28 U.S.C. § 2241 while he was confined
at USP-Lewisburg, in Lewisburg, Pennsylvania. In addition to section 2241, he
seeks relief by way of a petition for a writ of error coram nobis or for a writ of audita
querela. Petitioner claims that some of his sentences were imposed in violation of
Alleyne v. United States,

U.S.

, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

In Alleyne, the Supreme Court held that any fact that increases the mandatory
minimum sentence for an offense is an element of the crime that must be submitted
to the jury and proven beyond a reasonable doubt. 133 S.Ct. at 2155.

II.

Background
On July 13, 2005, in the United States District Court for the Western

District of Louisiana, Petitioner was charged in a superseding indictment, in relevant
part, with the following offenses:
three counts of distribution of cocaine base, in violation of
21 U.S.C. § 841(a)(1) (Counts 1, 5, 7); one count of
possession of cocaine base with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) (Count 3); four counts
of possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(Counts 2, 4, 6, 8); [and] one count of possession of a
firearm with an obliterated serial number, in violation of
18 U.S.C. § 922(k) (Count 9).
United States v. Sterling, No. 05-CR-20061, 2010 WL 3199860, at *3 (W.D. La. Aug.
9, 2010). Before trial, Petitioner pled guilty to Counts 3 and 4. Id. The jury found
him guilty on the other counts. Id.
On December 14, 2006, Petitioner was sentenced. (Doc. 7-1, ECF p.
29). The sentence was as follows: (1) 168 months of imprisonment on each of
Counts 1, 3, 5, and 7, and 60 months on Count 9, all running concurrently with each
other; (2) ten years on Count 4 running consecutively to all other sentences; and (3)
25 years of imprisonment on Counts 2, 6, and 8, running consecutively to each other
and to all other sentences. (Id., ECF p. 31). Petitioner’s total sentence was 99
years. Sterling, supra, 2010 WL 3199860, at *3.
Petitioner filed a direct appeal, and the Fifth Circuit affirmed. United
States v. Sterling, 555 F.3d 452 (5th Cir. 2009). The Supreme Court denied a
petition for a writ of certiorari.

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On January 31, 2010, Petitioner filed a motion for a reduction in
sentence based on the retroactive application of changes to the guidelines dealing
with crack cocaine offenses. (Id., ECF p. 19). The district court granted the motion
and entered an amended judgment on February 1, 2010. The amended judgment
reduced Petitioner’s sentence on Counts 1, 3, 5, and 7 to 135 months from 168
months, leaving the sentences on the other counts intact. (Id.) The amended
judgment reduced Petitioner’s sentence to 96 years and four months.
On May 18, 2010, Petitioner filed a motion under 28 U.S.C. § 2255 to
vacate his conviction and sentence. (Id.) On August 9, 2010, the district court
denied the motion. Sterling, supra, 2010 WL 3199860 (W.D. La.). On April 8, 2011,
the Fifth Circuit denied Petitioner’s application for a certificate of appealability. (Doc.
7-1, ECF p. 21).
Petitioner filed other collateral motions. One of them was a motion
filed with the Fifth Circuit seeking approval to pursue a second or successive 2255
motion based on Alleyne. In re Sterling, No. 13-30878 (5th Cir.). On November 7,
2013, the Fifth Circuit denied the motion because Alleyne had not been made
retroactive to cases on collateral review.

III.

Discussion
Petitioner contends that he received a ten-year sentence on Count 4

on a finding that the firearm was discharged during a drug-trafficking crime. See 18
U.S.C. § 924(c)(1)(A)(iii). (Doc. 3, ECF p. 2, Pet’r’s brief). He contends he received
25 years on each of Counts 2, 6, and 8 on the basis that they were second or

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subsequent offenses. See 18 U.S.C. § 924(c)(1)(C)(i). (Doc. 3, ECF p. 2, Pet’r’s
brief).
Petitioner maintains that the statutory sentencing increases he
received on these counts, totaling 85 years, were improper because the facts that
would have justified those increases were never submitted to the jury. He argues
this violated Alleyne because it requires that any fact that increases the mandatory
minimum sentence for an offense is an element of the crime that must be submitted
to the jury and proven beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155.
Absent a jury finding on those facts, Petitioner maintains he can only receive the
minimum five-year increase set forth in 18 U.S.C. § 924(c)(1)(A)(i). For Petitioner,
this means that he should only have to serve 20 years consecutively to the 135
months (11 years and four months) he must serve concurrently on the other
offenses.

A. Petitioner cannot proceed by way of section 2241
Petitioner argues that In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997),
allows him to present his Alleyne claim by way of section 2241. We disagree.
“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 must be presented to the court that
imposed the sentence. See 28 U.S.C. § 2255(a)(providing that a defendant “may
move the court which imposed the sentence”). When challenging the validity rather

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than the execution of a federal sentence, a federal prisoner must do so through a
section 2255 motion. Dorsainvil, 119 F.3d at 249.
Section 2255(h) provides that federal prisoners like Petitioner, who
have already filed a section 2255 motion, may file a “second or successive motion,”
but only in certain limited circumstances: when “a panel of the appropriate court of
appeals” has certified that the second or successive 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 contains “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); 28 U.S.C. §
2244(3)(A).
With limited exception, section 2255 does not permit prisoners to
challenge the validity of their conviction or sentence through a section 2241 habeas
petition. Under highly exceptional circumstances, the “safety valve” or “savings
clause” found in 28 U.S.C. § 2255(e) will permit a prisoner to challenge the validity of
his conviction in a habeas corpus proceeding under section 2241, but only where the
remedy afforded by section 2255(a) “is inadequate or ineffective” to test the legality
of his detention. 28 U.S.C. § 2255(e); Dorsainvil, 119 F.3d at 249-51; Abed v.
Bledsoe, 473 F. App’x 106, 107-108 (3d Cir. 2012)(nonprecedential).
For a section 2241 petition to be appropriate, the inadequacy or
ineffectiveness of a section 2255 motion must be “a limitation of scope or procedure

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[that] would prevent a § 2255 proceeding from affording [the petitioner] a full hearing
and adjudication of his wrongful detention claim.” Okereke v. United States, 307
F.3d 117, 120 (3d Cir. 2002)(citing Cradle v. United States ex rel. Miner, 290 F.3d
536, 538 (3d Cir. 2002)). “It is the inefficacy of the remedy, not the personal inability
to use it, that is determinative.” Cradle, 290 F.3d at 538-39. A section 2255 motion
is not “inadequate or ineffective” merely because he filed such a motion and was
denied relief, or he otherwise cannot meet the stringent gatekeeping requirements of
§ 2255(h) to file a second or successive 2255 motion. Troiano v. Warden Allenwood
USP, 614 F. App’x 49, 51 (3d Cir. 2015)(nonprecedential).
The Third Circuit has only applied the savings clause in the rare
situation where an intervening change in law has decriminalized the actions
underlying the prisoner's conviction. Okereke, 307 F.3d at 120 (citing Dorsainvil,
119 F.3d at 251). A section 2255 motion is inadequate “when a petitioner asserts a
claim of ‘actual innocence’ on the theory that ‘he is being detained for conduct that
has subsequently been rendered non-criminal by an intervening Supreme Court
decision’ . . . but is otherwise barred from challenging the legality of the conviction
under § 2255.” United States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013)(quoting
Dorsainvil, 119 F.3d at 252). The savings clause of section 2255, however, is
confined to instances of actual innocence of the underlying offense of conviction, not
innocence of a sentencing factor. “Section 2241 is not available for intervening
changes in the sentencing law” as such alterations would not render the crime for
which the prisoner was convicted non-criminal. United States v. Kenney, 391 F.

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App’x 169, 172 (3d Cir. 2010) (nonprecedential)(citing Okereke, 307 F.3d at 120121).
Here Sterling does not allege facts bringing his conviction within
Dorsainvil. He does not claim to be innocent of the underlying offenses, only that
under Alleyne his statutory sentencing factors had to be determined by the jury. He
therefore cannot rely on section 2241. See Gordon v. United States, 639 F. App’x
162, 163 (3d Cir. 2016)(nonprecedential)(refusing to entertain an Alleyne claim
under section 2241 by way of Dorsainvil because Alleyne did not decriminalize the
conduct of conviction); Talik v. Warden Lewisburg USP, 621 F. App’x 94, 95 (3d Cir.
2015) (nonprecedential) (same). See also Robinson v. Warden Schuylkill FCI, 687
F. App’x 125, 127 (3d Cir. 2017)(nonprecedential)(“This Court has applied [the]
‘safety valve’ only in the rare situation where a prisoner has had no prior opportunity
to challenge his conviction for actions deemed to be non-criminal by an intervening
change in law.”).
Petitioner therefore cannot rely on Dorsainvil to pursue his section
2241 petition.

B. The Supreme Court’s decision in Boumediene v. Bush
does not indicate that Dorsainvil should be extended to
sentencing factors
Petitioner contends that the Supreme Court’s decision in Boumediene
v. Bush, 553 U.S. 723 (2008), indicates that Dorsainvil should be extended to the
claim he is making here concerning sentencing factors. He quotes some broad
language from the Boumediene opinion dealing with the purpose of habeas corpus

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and stating that the remedy is adaptable to the circumstances of the particular case.
Id. at 779. He focuses on language where the Court stated: “that the privilege of
habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that
he is being held pursuant to ‘the erroneous application or interpretation’ of relevant
law.” Id. at 779 (quoted case omitted).
Boumediene is distinguishable. It dealt with the Detainee Treatment
Act of 2005 for alien combatants held at Guantanamo Bay and whether the act was
an adequate substitute for habeas corpus. Neither the case nor the broad language
Petitioner cites has any bearing on the Third Circuit’s interpretation in Dorsainvil of
section 2255’s savings clause. We therefore reject this argument.
We add that part of Petitioner’s justification in citing Boumediene for
extending Alleyne to his claim is that Alleyne applies retroactively. (Doc. 3, ECF p.
16). However, contrary to Petitioner’s position, Alleyne does not apply retroactively
to cases on collateral review. United States v. Reyes, 755 F.3d 210, 212 (3d Cir.
2014); Baker v. Warden Fort Dix FCI, 605 F. App’x 132, 134 n.3 (3d Cir.
2015)(nonprecedential).1

1

Petitioner makes other arguments in the Boumediene section of his brief. He cites
Hicks v. Oklahoma, 447 U.S. 343 (1980), to argue that his Alleyne claim is also a due
process violation. Hicks is not relevant to the Alleyne claim. Citing United States v. Clark,
260 F.3d 382, 388 (5th Cir. 2001)(dissenting, Parker, J.), Petitioner also argues he is
actually innocent of the sentencing factors used to increase his sentence. This argument is
foreclosed by the Third Circuit’s decisions that do not extend Dorsainvil past a defendant’s
conduct to sentencing issues. Petitioner further argues that failure to apply Alleyne would
violate the ex post facto clause. This argument lacks merit and fails to show why Petitioner
is entitled to employ section 2241.

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C. The Supreme Court’s Persaud decision does not entitle
Petitioner to rely on section 2241
Petitioner asserts that the Supreme Court’s decision to remand for
further proceedings in Persaud v. United States, 134 S.Ct. 1023 (2014), indicates
that section 2241 should apply under the savings clause not just to a defendant who
claims his conduct is no longer criminal but also to a defendant, like Petitioner, who
claims he is innocent of the sentence imposed.
In Persaud, the Supreme Court granted a petition for a writ of
certiorari, vacated the judgment of the Fourth Circuit, and remanded “for further
consideration in light of the position asserted by the Solicitor General in his brief for
the United States . . . .” 134 S.Ct. at 1023. In his brief, the Solicitor General argued
that a defendant should be able to use section 2241 by way of the savings clause to
challenge certain sentencing errors, and that the clause should not be limited to
challenges to convictions. Brief for United States, Persaud v. United States, 134
S.Ct. 1023 (2014)(No. 13-6435), 2013 WL 7088877, at *18-19.
We disagree with Petitioner. The Supreme Court’s action in Persaud,
issuing a “GVR” order (granting certiorari, vacating the judgment of the court below,
and remanding for further proceedings) has no precedential value, and there is no
reason for us to depart from Third Circuit case law on the issue. See Gibson v.
Thomas, No. 14-CV-820, 2017 WL 714048, at *1 (M.D. Pa. Feb. 23, 2017)(the court
did not have to follow Persaud since the Supreme Court did not adopt the Solicitor
General’s position and hence the case was not controlling authority); Rodriguez v.
Thomas, No. 14-CV-1121, 2015 WL 179057, at *4 (M.D. Pa. Jan. 14, 2015)(rejecting

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the Persaud argument because a GVR order has no precedential value so the court
was bound to follow Third Circuit authority in Okereke requiring Alleyne claims to be
brought under section 2255, not 2241). See also Pettaway v. Vasquez, 654 F. App’x
198, 199 (5th Cir. 2016) (nonprecedential)(Persaud was not a substantive decision
so it does not support the petitioner’s claim that his sentencing challenges can be
brought under section 2241).

D. Petitioner is not eligible for coram nobis relief
Petitioner argues that if he is not entitled to relief under section 2241,
he can seek relief by way of a petition for a writ of error coram nobis.
Petitioner is not eligible for coram nobis relief because such relief is
only available for a person who is no longer in custody. Chaidez v. United States,
568 U.S. 342, 345 n.1 (2013)(“A petition for a writ of coram nobis provides a way to
collaterally attack a criminal conviction for a person, like Chaidez, who is no longer
“in custody” and therefore cannot seek habeas relief under 28 U.S.C. § 2255 or §
2241.”); United States v. Dwumaah, 570 F. App’x 193, 196 (3d Cir.
2014)(nonprecedential)(one requirement for coram nobis relief is that the person
“must no longer be in custody and therefore not be eligible for alternative remedies
such as habeas corpus”)(citing Chaidez); United States v. Morris, No. 12-CR-105,
2016 WL 6599959, at *2 (M.D. Pa. Nov. 7, 2016)(Caldwell, J.)(“Defendant is still
incarcerated . . . and therefore coram nobis is not applicable.”)(citing United States
v. Baptiste, 223 F.3d 188, 189 (3d Cir. 2000)).

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E. Petitioner is not eligible for relief by way of a writ
of audita querela
Petitioner contends that if no other avenue of relief is available, he is
entitled to relief by way of a petition for a writ of audita querela. “The common law
writ of audita querela permitted a defendant to obtain ‘relief against a judgment or
execution because of some defense or discharge arising subsequent to the rendition
of the judgment.’” Massey v. United States, 581 F.3d 172, 174 (3d Cir.
2009)(quoted case omitted). The writ of audita querela “is available in criminal
cases to the extent it fills in gaps in the current system of post-conviction relief.” Id.
Generally, “[t]here is no gap to fill in the post-conviction remedies”
because a defendant may rely on a motion under 28 U.S.C. § 2255 “to collaterally
challenge a federal conviction or sentence.” Id. (footnote omitted). And if section
2255 is “inadequate or ineffective” to test the legality of her detention, the defendant
has resort to section 2241. Id. at 174 n.1.
Here, however, Petitioner does not have resort to section 2255 or
section 2241. Petitioner contends that if audita querela is not available in these
circumstances, it would present a “thorny constitutional issue,” citing United States v.
Richter, 510 F.3d 103, 104 (2d Cir. 2007)(quoting Dorsainvil, 119 F.3d at 248). It
would raise “serious questions about the constitutional validity of both § 2255 and §
2241.” Id.
Nonetheless, Petitioner cannot invoke audita querela. As noted above,
Alleyne does not apply retroactively to cases on collateral review. Reyes, 755 F.3d
at 212. “There is, therefore, no colorable claim of a constitutional violation, and,

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hence, the absence of other avenues of collateral attack does not give rise to
serious constitutional questions.” Richter, 510 F.3d at 104 (because United States
v. Booker, 543 U.S. 220 (2005), was not retroactive to cases on collateral review,
there was no need to consider allowing the defendant to pursue his Booker claim by
way of audita querela since the absence of other avenues of collateral attack would
not raise serious constitutional questions).

IV.

Conclusion
We will issue an order dismissing the petition for lack of jurisdiction.2

We will not issue a certificate of appealability as Petitioner has the right to appeal
our order to the Third Circuit without a certificate. See Burkey v. Marberry, 556 F.3d
142, 146 (3d Cir. 2009).

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

Date: November 14, 2017

2

Where a federal prisoner improperly challenges their federal conviction or sentence
under § 2241, the district court must typically dismiss the petition for lack of jurisdiction.
Cradle, supra, 290 F.3d at 539.

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