Drake v. Warden of Allenwood Low

Filing 5

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Yvette Kane on 12/16/16. (sc)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DEANTE DRAKE,
Petitioner
vs.
WARDEN OF ALLENWOOD LOW,
Respondent

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No. 1:16-CV-01034
(Judge Kane)

MEMORANDUM
Background
Deante Drake, a federal inmate presently confined at the
Allenwood Federal Correctional Complex, White Deer, Pennsylvania,
filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§2241, in which he names the warden of that facility as the
Respondent. (Doc. No. 1, Drake’s Petition.)
prior § 2241 petitions in this court.1

Drake has filed two

In the present petition,

he is attacking the same conviction which was the subject of those
prior petitions.

The court will take judicial notice of those

prior proceedings and the facts elicited therein.
Like the prior petition, the allegations of the present
petition are vague. Drake indicates in the body of his petition
that he was indicted of drug offenses in 2007 and entered a plea
of guilty.

His petition does not specify when he was sentenced,

the sentence he received, or what actions he took to challenge the

1. See Drake v. Warden of F.C.I. Schuylkill, Civil No. 1:15-CV00866 (M.D. Pa. filed May 5, 2015); Drake v. Warden - Allenwood,
Civil No. 1:16-CV-00542 (M.D. Pa. filed March 30, 2016).

conviction. It is only the attachments to the petition which
reveal that he entered a plea of guilty in the United States
District Court for the Northern District of West Virginia to drug
offenses. (Id. at 60-73.) Drake claims that he is entitled to
relief because of newly discovered evidence.(Id. at 1-11.)

Drake

paid the $5.00 filing fee.
The petition will now be given preliminary consideration
pursuant to Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C.
foll. § 2254, as made applicable to § 2241 cases by Rule 1
thereof.2

For the reasons set forth below, the petition will be

dismissed summarily.
Discussion
The docket of the United States District Court for the
Northern District of West Virginia reveals that on June 5, 2007, a
five-count indictment was filed against Drake and others charging
the defendants, inter alia, with distributing cocaine base.
Indictment, United States v. Drake, 1:07-CR-00053-IMK-JES-1
(N.D.W.Va. June 5, 2007), ECF No. 14 (PACER).3

On January 9,

2. Rule 4 states in pertinent part that “[t]he clerk must
promptly forward the petition to a judge under the court’s
assignment procedure, and the judge must promptly examine it. If
it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition . . . .”
3. The court docket for this case was accessed using the Public
Access to Court Electronic Records (PACER) which is an electronic
database of United States federal court documents. A district
court may take judicial notice of proceedings in another court.
See United States v. Wilson, 631 F.2d 118 (9th Cir. 1980); Hayes
(continued...)
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2008, Drake plead guilty to one count of conspiracy to possess
with intent to distribute and to distribute fifty grams or more of
cocaine base.

Order Adopting Report and Recommendation [DKT. No.

7], Overruling Objections [DKT. No. 10], Denying § 2255 Motion
[DKT. No. 1], and Dismissing Case with Prejudice, United States v.
Drake, No. 1:07-CR-00053-IMK-JES-1 (N.D.W.Va. February 6, 2015),
ECF No. 357(PACER).

Drake entered the guilty plea pursuant to a

plea agreement which stipulated that he was a career offender
under § 4B1.1 of the United States Sentencing Guidelines and that
his relevant conduct involved between 50 and 150 grams of cocaine
base. Id.

Drake also waived his right to a direct appeal of any

sentence imposed or to collaterally attack his sentence. Id.

On

May 12, 2008, the district court in Virginia, the Honorable Irene
M. Keeley, sentenced Drake to 292 months of imprisonment, the
lowest end of the applicable guideline range, followed by five
years supervised release. Id.

Drake appealed to the Court of

Appeals for the Fourth Circuit, and his appeal was denied.

Id.

Drake filed his first §2255 motion on August 28, 2009. United
States v. Drake, No. 1:07-CR-00053-IMK-JES-1 (N.D.W.Va. Aug. 28,
2009) ECF No. 223(PACER).

The district court dismissed that

motion on March 21, 2011. ECF No. 251.

Drake filed an appeal to

the Court of Appeals for the 4th Circuit which was dismissed on
3. (...continued)
v. Woodford, 444 F.Supp.2d 1127, (S.D. Cal. 2006)(“[F]ederal
courts may take judicial notice of other courts’ proceedings,
within the federal judiciary and without, if the proceedings
directly relate to the matter before the court.”).
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February 13, 2012. ECF No. 267.

On November 22,2013, Drake filed

a second § 2255 motion, in which he asked the district court to
overturn his conviction in light of the decision of the Supreme
Court in Descamps v. United States, supra, because he was
“actually innocent” of the “aggravated crime” of being a career
offender. ECF No. 308. The district court on February 6, 2015,
dismissed that petition as a second or successive § 2255 motion
and because Drake did not seek permission from the Court of
Appeals for the 4th Circuit to file it. ECF No. 357.
court denied a certificate of appealability. Id.

The district

A motion for

reconsideration was denied on March 2, 2015. ECF. No. 361. Drake
filed an appeal to the Court of Appeals for the 4th Circuit and on
August 24, 2015, the Court of Appeals denied a certificate of
appealability and dismissed the appeal. ECF. No. 373.
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.

E.g., United

States v. Addonizio, 442 U.S. 178, 179 (1979).

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. 1972) (per
curiam), cert. denied, 409 U.S. 1046 (1972).
In Drake’s third petition filed in this court, Drake
clearly maintains that his federal conviction violates his federal
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statutory and constitutional rights.

Thus, his proper avenue of

relief is a section 2255 motion filed in the district court where
he was convicted and sentenced.

Drake is challenging his

conviction on the basis of newly discovered evidence.

This is the

type of claim which should be presented to the court that
sentenced Drake.4
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, 437 F.2d 1164, 1165

(3d Cir. 1971) (per curiam) (quoting United States ex rel.
Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954)).

It has

4. Drake’s arguments regarding newly discovered evidence are
vague and rambling and appear to be based on conduct by federal
agents in obtaining and executing a search warrant. However, any
constitutional claims relating to the obtaining of evidence or
the execution of a search warrant were waived when Drake entered
a plea of guilty.
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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, that is determinative . . . ."

Garris v. Lindsay, 794 F.2d

722, 727 (D.C. Cir. 1986) (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)).

Drake has not met this

burden. At best under the present circumstances Drake may
demonstrate a personal inability to utilize the § 2255 remedy, but
he does not establish the inadequacy or ineffectiveness of the
remedy itself.

See Jeffers v. Holland, Civil No. 97-1203, (M.D.

Pa. Nov. 7, 1997) (Conaboy, J.); Berry v. Lamer, Civil No. 961678, slip op at 13-14 (M.D. Pa. April 30, 1997) (Kosik, J.)
(finding that existence of two orders from circuit court warning
petitioner that no other submissions shall be filed or entertained
in his case, did not render his remedy by way of § 2255 motion
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inadequate or ineffective); Holland v. Harding, Civil No. 95-0870,
slip op at 4 (M.D. Pa. Nov. 21, 1995) (McClure, J.)(holding that
entering into a sentencing agreement wherein the right to
challenge the conviction or sentence by direct appeal or by § 2255
motion is waived does not render a § 2255 motion inadequate or
ineffective); see also In re Dorsainvil, 119 F.3d 245, 251 (3d
Cir. 1997) (denying motion for certification to file a second §
2255 petition without prejudice to petitioner filing a § 2241
habeas corpus petition because passage of a subsequent law may
negate the crime of which he was convicted, the Third Circuit
Court of Appeals stated in dicta, “[w]e do not suggest that § 2255
would be ‘inadequate or ineffective’ so as to enable a second
petitioner to invoke § 2241 merely because that petitioner is
unable to meet the stringent gatekeeping requirements of the
amended § 2255.

Such a holding would effectively eviscerate

Congress’s intent in amending § 2255.”).
The legislative limitations on successive § 2255
proceedings do not render the remedy either inadequate or
ineffective so as to authorize pursuit of a habeas corpus petition
in this Court.

To hold otherwise would simply effect a transfer

of forum for the adjudication of successive challenges to the
validity of a conviction.

That Congress did not intend such a

result is made manifest by 28 U.S.C. § 2244(a), which provides
that no district judge "shall be required to entertain an
application for a writ of habeas corpus to inquire into the
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detention of a person pursuant to a judgment of a court of the
United States if it appears that the legality of such detention
has been determined by a judge or court of the United States on a
prior application for a writ of habeas corpus, except as provided
in Section 2255."

As noted above, § 2255 authorizes a district

court to consider a habeas corpus petition of a federal prisoner
only if the § 2255 motion is inadequate or ineffective.
Clearly in view of the fact that Drake has already filed a § 2255
motion regarding his conviction, that remedy has proven to be an
affective and adequate means for him to challenge the legality of
his detention.
Thus, the court will dismiss Drake’s petition for a writ
of habeas corpus under 28 U.S.C. § 2241, without prejudice to any
right Drake may have to seek leave to file a successive § 2255
motion in the sentencing court.
Finally, Drake is not detained because of process issued
by a state court and the petition is not brought pursuant
to 28 U.S.C. § 2255, no action by this court with respect to a
certificate of appealability is necessary.
An appropriate order will be entered.

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