Crenshaw v. United States of America

Filing 3

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK KERRY CRENSHAW,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent

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1:17-cv-0026
Hon. John E. Jones III

MEMORANDUM
January 23, 2017
Presently before the court is a petition for writ of habeas corpus (Doc. 1)
pursuant to 28 U.S.C. § 2241 filed by petitioner Mark Kerry Crenshaw
(“Crenshaw”), a federal inmate incarcerated at the United States Penitentiary at
Lewisburg, Pennsylvania. Preliminary review of the petition has been undertaken,
and, for the reasons set forth below, the petition will be dismissed for lack of
jurisdiction.1
I.

BACKGROUND
Following a jury trial, Crenshaw was convicted in January 1991, in the

United States District Court for the Eastern District of Virginia, on ten counts of an
indictment charging him with violations of 18 U.S.C. § 2113 (1988) (bank
1

See R. GOVERNING § 2254 CASES R.4, which provides “[i]f 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 and direct the clerk to notify the petitioner.” These rules are applicable
to petitions under 28 U.S.C. § 2241 in the discretion of the court. Id. at R.1(b).

robbery), and 18 U.S.C. § 924(c)(1) (1988) (use of a firearm during the
commission of a crime of violence), in connection with six bank robberies in
Virginia. United States v. Crenshaw, 972 F.2d 342 (4th Cir. 1992); (Doc. 1). He
was sentenced pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. A. §§
3551-3586 (West 1984 & Supp. 1991), to a total of 900 months imprisonment to
be followed by a five-year term of supervised release. Id.; Id. Crenshaw appealed,
and the United States Court of Appeals for the Fourth Circuit affirmed the sentence
and convictions. United States v. Crenshaw, 972 F.2d 342. He then pursued postappeal avenues, which he details as follows:
June 1996, petitioner filed a 2255 petition on the grounds of
ineffective assistance of counsel. The U.S. Government filed a
motion for Count 4 of the indictment to be dismissed. The district
judge granted the Government’s motion, adjusted the sentence, and
dismissed the Petitioner’s 2255. June 17, 2016. The Petitioner filed a
motion pursuant to 28 U.S.C. § 3582(c)(2) for a modification of an
imposed sentence consistent with Johnson v. U.S. S.Ct (2015). On
June 28, 2016, the court entered an order noting that, despite the fact
the motion was labeled as such, the only potential remedy available
would be pursuant to 2255. The order further advised the Petitioner it
would be necessary he [sic] first sought leave by the appeallate [sic]
court. On August 2, 2016, the Fourth Circuit concluded “Petitioner’s
Predicate crimes that underlies [sic] his 924(c) convictions were not
called into question by Johnson.”
(Doc, 1, pp. 2-3).
He filed the instant petition on January 5, 2017, alleging “Petitioner’s
conviction/sentence under 924(c)(1) for using/carrying a firearm in furtherance of
a crime of violence violates due process laws. The Petitioner’s predicate crimes

do not qualify as crimes of violence. Thus, he has been subject to
punishment/incarceration that cannot be imposed upon him. The convictions rest
upon an improper definition of force and/or ‘violent felony’ See Johnson, 559 U.S.
133 140 (2010).” (Doc. 1, p. 1). He bring this petition pursuant to 28 U.S.C. §
2241 alleging that the “ha[s] not had an unobstructed procedural shot at bringing
his claim.” (Id.)
II.

DISCUSSION
Challenges to the legality of federal convictions or sentences that are

allegedly in violation of the Constitution may generally be brought only in the
district of sentencing pursuant to 28 U.S.C. § 2255. Okereke v. United States, 307
F.3d 117 (3d Cir. 2002) (citing Davis v. United States, 417 U.S. 333, 342 (1974));
see In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). Once relief is sought via section
2255, an individual is prohibited from filing a second or subsequent 2255 petition
unless the request for relief is based on “newly discovered evidence” or a “new
rule of constitutional law.” 28 U.S.C. § 2255 (h); 28 U.S.C. 2244(3)(A).
Crenshaw has recently pursued the Johnson issue in a 28 U.S.C. §
3582(c)(2) filing in the sentencing court, which motion was considered a § 2255
motion, and denied based on Crenshaw’s failure to first seek leave with the
appellate court pursuant to 28 U.S.C. § 2244(c)(3). He appealed and, in affirming,
Crenshaw represents that the Fourth Circuit specifically stated “Petitioner’s

Predicate crimes that underlies [sic] his 924(c) convictions were not called into
question by Johnson.” Despite this ruling, Crenshaw attempts to challenge his
sentence, via a 2241 petition. This claim may not be raised in a § 2241 petition
except in unusual situations where the remedy by motion under § 2255 would be
inadequate or ineffective. See 28 U.S.C. § 2255; see Dorsainvil, 119 F.3d at 25152. Importantly, §2255 is not “inadequate or ineffective” merely because the
sentencing court has previously denied relief. See id. at 251. Nor do legislative
limitations, such as statutes of limitation or gatekeeping provisions, placed on §
2255 proceedings render the remedy inadequate or ineffective so as to authorize
pursuit of a habeas corpus petition in this court. Cradle v. United States, 290 F.3d
536, 539 (3d Cir. 2002); United States v. Brooks, 230 F.3d 643, 647 (3d Cir. 2000);
Dorsainvil, 119 F.3d at 251. Rather, only when a federal prisoner is in an unusual
position of having no earlier opportunity to challenge his conviction or where he
“is being detained for conduct that has subsequently been rendered noncriminal by
an intervening Supreme Court decision” can he avail himself of § 2241.
Dorsainvil, 119 F.3d at 251–52.
The remedy afforded under § 2241 is not an additional, alternative, or
supplemental remedy to that prescribed under § 2255 and Crenshaw fails to
demonstrate that he falls within the Dorsainvil exception If a petitioner improperly
challenges a federal conviction or sentence under section 2241, as is the case here,

the petition must be dismissed for lack of jurisdiction. Application of Galante, 437
F.2d 1154, 1165 (3d Cir. 1971).
III.

CONCLUSION
For the above stated reasons, the court will dismiss this § 2241 petition for

lack of jurisdiction.
An appropriate order will issue.