Sukho v. United States of America et al

Filing 25

MEMORANDUM re Petition for Writ of Habeas Corpus 9 and MOTION for Summary Judgment 14 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 9/19/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANIRUDH L. SUKHU,
Petitioner
v.
UNITED STATES OF AMERICA, et al.,
Respondents

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CIVIL NO. 1:CV-15-2386
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Anirudh L. Sukhu, an inmate at the Allenwood Low Federal Correctional
Institution (LFCI Allenwood), in Allenwood, Pennsylvania, filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. In his Petition, Sukhu challenges his 2009
conviction and sentence in the United States District Court for the District of Maryland for
armed bank robbery under 18 U.S.C.§ 2113(a), (d) and (f), and the use of a firearm in
connection with a crime of violence under 18 U.S.C. § 924(c). Sukhu argues, in part,
that in light of Johnson v. United States, _____ U.S. _____, 135 S.Ct. 2551, 192 L.Ed.2d
569 (2015),1 his armed bank robbery conviction in violation is no longer a “crime of
violence” within the meaning of 18 U.S.C. § 924(c)(3). Sukho also seeks to be
resentenced in light of United States v. Mathis, _____ U.S. _____, 136 S.Ct. 2243, 195
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In Johnson, which 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), the Supreme Court held that the
residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), was void for
vagueness.

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L.Ed.2d 604 (2016) based on his belief that he was subjected to “double counting” when
he was sentenced under 18 U.S.C. § 924(c) for both bank robbery (where he discharged
a firearm) and for possessing and discharging a firearm under 18 U.S.C. § 924(c), which
carries a mandatory consecutive ten-year sentence. Respondent argues that neither
Johnson nor Mathis represents an intervening change in law which invalidates Sukhu’s
conviction.
For the reasons that follow, the Petition must be construed as a motion
under § 2255 and denied.

II.

Background and Procedural History2
In December 2008, a grand jury for the United States District Court for the

District of Maryland returned a three-count indictment charging Sukhu with conspiring to
commit bank robbery in violation of 18 U.S. C. §§ 2113(a) and (f) and 18 U.S.C. § 371
(Count I); robbing a bank by force or violence in violation of 18 U.S.C. §§ 2113(a)(, (d), and
(f) (Count II); and using a firearm (discharge) in the commission of robbing a bank in
violation of 18 U.S.C. § 924(c) (Count III). On July 23, 2009, Sukhu entered into a plea
agreement agreeing to plead guilty to Counts II and III. Count I was dismissed. On
December 11, 2009, Sukhu was sentenced to consecutive terms of 135 months’
imprisonment on Count II and 120 months on Count III. On October 29, 2010, the Fourth
Circuit dismissed his appeal.

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The Court takes judicial notice of the docket in Sukhu’s criminal case, United States v.
Sukho, 1:08-cr-0557 (D. Md.).

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On January 18, 2011, Sukhu filed a § 2255 motion to vacate, set aside or
correct his sentence. The sentencing court denied the motion on November 18, 2011.
Sukhu v. United States, Civ. No. WDQ-11-0061, 2011 WL 5839001 (D. Md.). The Fourth
Circuit affirmed the district court’s order denying Petitioner relief on his 28 U.S.C. § 2255
motion on May 3, 2012. United States v. Sukhu, No. 11-7708, 472 F. App’x 170 (4th Cir.
2012)(nonprecedential).
On June 23, 2016, the Fourth Circuit denied Sukhu’s motion pursuant to 28
U.S.C. § 2244(b) and § 2255(h) for authorization to file a second or successive 28 U.S.C. §
2255 motion relying upon Johnson, supra and Welch, supra.

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 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 than the execution of a federal
sentence, a federal prisoner must do so through a § 2255 motion. See In re Dorsainvil, 119
F.3d 245 (3d Cir.1997). Section 2255 provides that federal prisoners like Petitioner, 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

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would have found the movant guilty of the offense” or that the motion relies on “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 exceptions, § 2255 does not permit prisoners to challenge the
validity of their conviction or sentence through a § 2241 habeas petition. See 28 U.S.C. §
2255(e). 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 v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002).
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 § 2241, but only where the remedy afforded by §
2255(a) “is inadequate or ineffective” to test the legality of his detention. 28 U.S.C. §
2255(e); Gardner v. Warden Lewisburg, 845 F.3d 99, 101 (3d Cir. 2017); Dorsainvil, 119
F.3d at 249 - 51. For a § 2241 petition to be appropriate, the inadequacy or ineffectiveness
of a § 2255 motion must be “a limitation of scope or procedure [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, 290 F.3d at 538). “It is the inefficacy of the remedy, not the personal inability
to use it, which is determinative.” Cradle 290 F.3d at 538-39. A § 2255 motion is not
“inadequate or ineffective” merely because the prisoner's time to file a § 2255 motion has
passed; he did not file a § 2255 motion; he did file such a motion and was denied relief; or
he cannot otherwise meet the stringent gatekeeping requirements of § 2255(h) to file a

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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 this “safety valve” 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 §
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 noncriminal 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 §
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. App’x
169, 172 (3d Cir. 2010)(nonprecedential)(citing Okereke, 307 F.3d at 120-121).
Here Sukhu does not allege facts to bring his conviction within the Dorsainvil
exception. He cannot demonstrate that his circumstances constitute the sort of miscarriage
of justice what would justify application of the safety valve language of § 2255 rather than
its gatekeeping requirements. Section 2255 is not “inadequate or ineffective” in this matter.
First, as Respondent correctly notes, Sukhu has not demonstrated he is
entitled to pursue habeas relief via a § 2241 petition as he has not demonstrated § 2255 is
inadequate or ineffective to address this claim. The fact that the Fourth Circuit Court of

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Appeals denied his request to file a second or successive § 2255 motion asserting his
Johnson claims does not make § 2255 relief inadequate or ineffective. See Cradle, 290
F.3d at 539. Second, to the extent Sukhu contends that following Johnson he is entitled to
habeas relief as his bank robbery conviction no longer constitutes a “crime of violence,” he
is mistaken. The Fourth Circuit specifically held that:
Sukhu pled guilty to using a firearm during a “crime of violence,”
which in Sukhu’s case was federal bank robbery in violation of
18 U.S.C. § 2113(a), (d). Federal bank robbery is a “crime of
violence” within the meaning of 18 U.S.C. § 924(c)(3). United
States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016).
In re Sukhu, No. 16-9160 (4th Cir. Jun. 23, 2016) (ECF No. 13-1, pp. 68 – 69).
Accordingly, we lack jurisdiction to address Sukhu’s Johnson claims.
Next, Sukhu seeks to vacate and correct his sentence in light of Mathis.
(ECF No. 9, pp. 2 – 31). He cannot do so by means of a § 2241 petition. First, he offers no
evidence that the United States Supreme Court or the Third Circuit, has held that Mathis
announced a new rule of law retroactively applicable to cases on collateral review. See
Jackson v. Kirby, No. 17-4651, 2017 WL 3908868 (D. N. J. Sept. 6, 2017). Next, Sukhu’s
instant claim is not based upon a contention that Mathis decriminalized the conduct which
led to his conviction. Instead he challenges the basis for his sentence pursuant to Mathis.
The Third Circuit Court of Appeals has not extended the limited Dorsainvil exception to
include situations where a prisoner is challenging a sentence based on an intervening
change in substantive law. Okereke, 307 F.3d at 120 (refusing to extend Dorsainvil
exception to sentencing challenge under Apprendi); Pearson v. Warden Canaan USP, 685
F. App’x 93, 96 (3d Cir. 2017) (“§ 2241 is not available for an intervening change in the

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sentencing laws” citing Okereke, supra); Jackson v. Kirby, No. 17-4651, 2017 WL 3908868
(D. N. J. Sept. 6, 2017) (Mathis based sentencing enhancement claim not properly
asserted under § 2241); Parker v. Warden FCI-Schuylkill, No. 17-0765, 2017 WL 24445334
(M.D. Pa. Jun. 6, 2017) (same). The remedy afforded under § 2241 is not an additional,
alternative, or supplemental remedy to that prescribed under § 2255. Thus, Sukho fails to
demonstrate that his claim falls within the Dorsainvil exception. Accordingly we lack
jurisdiction over this claim.
An appropriate order follows.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: September 19, 2017

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