Selby v. Scism

Filing 13

MEMORANDUM and ORDER overruling petitioner's objections 11 ; adopting 9 Report and Recommendation of Magistrate Judge Carlon; DISMISSING petion for writ of habeas corpus; Clerk of Court is directed to CLOSE case.Signed by Honorable James M. Munley on 9/23/10 (sm, )

Selby v. Scism

Doc. 13

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA M IC H A E L SELBY, P e t itio n e r : N o . 3:10cv1554 : : (J u d g e Munley) : v. : : W IL L IA M SCISM, : R espondent : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM B e fo re the court is the report and recommendation of Magistrate Judge Martin C . Carlson, which proposes that the court dismiss the instant petition for a writ of h a b e a s corpus. The petitioner has filed objections to that recommendation 1 , b rin g in g the case to its present posture. B a c k g ro u n d P e titio n e r Michael Selby pled guilty to charges of conspiracy to possess with in te n t to distribute a controlled substance on October 12, 2005, and received a s e n te n c e of 188 months. (Petition for Writ of Habeas Corpus (Doc. 1)). He a p p e a le d the conviction and sentence to the United States Court of Appeals for the T h ird Circuit. (Id.). That court affirmed the sentence on January 3, 2007. (Id.). Petitioner subsequently filed a motion to vacate the judgment pursuant to 28 U.S.C.

The petitioner has captioned his filing as a motion for reconsideration of the Magistrate Judge's report and recommendation. Because petitioner does not raise the grounds traditionally associated with a motion for reconsideration, the court will treat the petitioner's filing as objections and evaluate the document on those terms.

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§ 2255, raising grounds of ineffective assistance of counsel and inaccuracies in the p re -s e n te n c e investigation. (Id.). Both the district court and the Court of Appeals d e n ie d this motion. (Id.). That court subsequently denied two applications by the p e titio n e r for permission to file a second or successive petition pursuant to 28 U.S.C. § 2 2 5 5 . (See Brief in Support of Petition for Habeas Corpus (Doc. 1) at 3). Petitioner th e n filed the instant petition for a writ of habeas corpus on July 27, 2010. (See Doc. 1 ). As grounds, petitioner complains that he was improperly sentenced as a career o ffe n d e r. A Pennsylvania court convicted him of simple assault, and this charge d o e s not qualify as a "crime of violence" under the United States Supreme Court's d e c is io n in Begay v. United States, 553 U.S. 137 (2008). Thus, petitioner insists, he d id not qualify for classification as a career offender and his sentence was improper. He also asserts that he may proceed under 28 U.S.C. § 2241 because Begay re p re s e n ts a retroactively applicable substantive change in federal law, which p ro v id e s him with another opportunity to challenge his sentence. O n August 18, 2010, Magistrate Judge Carlson issued a report and re c o m m e n d a tio n that proposed the court dismiss petitioner's claims as improperly b ro u g h t under Section 2241. Magistrate Judge Carlson found that petitioner had not m a d e a showing that Section 2255 was inadequate or ineffective as a means of c h a lle n g in g the legality of his detention, and thus Section 2241 was unavailable to h im . Petitioner filed objections to this recommendation, bringing the case to its p re s e n t posture.

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Jurisdiction P e titio n e r brings this action pursuant to 28 U.S.C. § 2441. As such, the court h a s jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have o rig in a l jurisdiction of all civil actions arising under the Constitution, laws, or treaties o f the United States."). Legal Standard In disposing of objections to a magistrate judge's report and recommendation, th e district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. C a rls o n , 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to th e magistrate judge with instructions. Id. Under 28 U.S.C. § 1915(d), the court is permitted "to consider whether an in fo rm a pauperis complaint is frivolous or malicious before authorizing issuance of the s u m m o n s and service of the complaint." Urrutia v. Harrisburg County Police Dept., 9 1 F.3d 451, 453 (3d Cir. 1996). The court may "dismiss as frivolous claims based o n an indisputably meritless legal theory and whose factual contentions are clearly b a s e le s s ." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). Courts undertake s u c h an evaluation before service of the complaint. D is c u s s io n 3

Petitioner objects to the magistrate judge's recommendation that his claim be d is m is s e d for want of jurisdiction because it should have been brought under 28 U .S .C . § 2255 rather than 28 U.S.C. § 2241. He contends that no relief is available to him under Section 2255 and thus his remedy exists under Section 2241.2 P e titio n e r points to the decision of the United States Supreme Court in Begay v. U n ite d States, 553 U.S. 137 (2008), to argue that a substantive change in the c o n tro llin g law that applies retroactively to his case has appeared. Because of this c h a n g e in the law, petitioner argues, he is entitled to bring his case under Section 2 2 4 1 . He points to case law from other districts and circuits which he contends e s ta b lis h e s his right to file the instant petition under these circumstances. A t issue here is the relationship between the two statutes. Section 2241 p ro v id e s that a court may issue a writ of habeas corpus to a prisoner "in custody in v io la tio n of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2 2 4 1 (c )(3 ). Section 2255 provides that a federal prisoner "claiming the right to be re le a s e d upon the ground that the sentence was imposed in violation of the C o n s titu tio n or laws of the United States, or that the Court was without jurisdiction to im p o s e such sentence, or that the sentence was in excess of the maximum a u th o riz e d by law, or is otherwise subject to collateral attack" can move the court to

Petitioner captioned his original filing as a Section 2255 case rather than a Section 2241 case. He apparently accepts that he filed the action pursuant to Section 2241, however, since he filed a document explaining to the court why his case should be considered a Section 2241 matter. In any case, plaintiff could not have filed a Section 2255 action, as explained infra. 4

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set aside the sentence. 28 U.S.C. §2255(a). Moreover, Section 2255 is the sole re m e d y for a prisoner seeking to challenge his sentence in such fashion, "unless it a ls o appears that the remedy by motion is inadequate or ineffective to test the le g a lity of his detention." 28 U.S.C. § 2255(e). As such, "under the explicit terms of 28 U.S.C. § 2255, unless a § 2255 motion w o u ld be `inadequate or ineffective,' a habeas petition under § 2241 cannot be e n te rta in e d by the court." Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002). A motion under Section 2255 "is inadequate or ineffective only where the petitioner d e m o n s tra te s that some limitation of scope or procedure would prevent a § 2255 p ro c e e d in g from affording him a full hearing and adjudication of his wrongful d e te n tio n claim." Id. Inadequacy comes when "the remedy" is ineffective, not when a petitioner finds himself unable to use that remedy. Id. "Section 2255 is not in a d e q u a te or ineffective merely because the sentencing court does not grant relief, th e one-year statute of limitations has expired, or the petitioner is unable to meet the s trin g e n t gatekeeping requirements of the amended § 2255." Id. at 539. T h e magistrate judge concluded that petitioner had not met these stringent s ta n d a rd s , in part because petitioner has not alleged that a change in the law has m a d e him actually innocent of the crime for which he was convicted, but instead c o n te n d s that he should no longer be considered a career offender under the s e n te n c in g laws. Instead, the magistrate judge determined, plaintiff seeks to have th e court apply Begay retroactively to his case and provide him with a lesser

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sentence. This matter, the magistrate judge concluded, is more properly the subject o f a second or successive motion pursuant to Section 2255 than the subject of a p e titio n e r under Section 2241. The magistrate judge therefore found that instead of filin g a motion with this court the petitioner should have sought permission to file s u c h a motion from the Third Circuit Court of Appeals pursuant to 28 U.S.C. § 2 2 5 5 (h ). T h e court agrees with the magistrate judge and will adopt the report and re c o m m e n d a tio n . Defendant seeks to have the court determine that a change in the c o n tro llin g law invalidates his sentence, and argues that Section 2255 is inadequate fo r addressing this claim. The court disagrees. Section 2255 provides for petitioners w h o contend that new evidence or new controlling law calls their confinement into q u e s tio n to seek a writ. The statute, however, requires a petitioner seeking to file a s e c o n d or successive petition for writ of habeas corpus to obtain a certification "by a th re e judge panel of the court of appeals [that the motion] contain[s]: (1) newly d is c o v e re d evidence that, if proven and viewed in the light of the evidence as a w h o le , would be sufficient to establish by clear and convincing evidence that no re a s o n a b le factfinder would have found the movant guilty of the offense; or (2) a new ru le of constitutional law, made retroactive to cases on collateral review by the S u p re m e Court, that was previously unavailable." In re Dorsainvil, 119 F.3d 245, 2 4 7 (3d Cir. 1997) (quoting 28 U.S.C. § 2255). Petitioner therefore has a remedy u n d e r the statute adequate for addressing his claims, even if the Court of Appeals

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rejects his application. Petitioner therefore cannot avail himself of Section 2241. Plaintiff's challenge to his conviction on these grounds must begin with a motion to th e Circuit Court. C o n c lu s io n F o r the reasons stated above, the court will adopt the report and re c o m m e n d a tio n and dismiss the instant petition. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA M IC H A E L SELBY, P e t itio n e r : N o . 3:10cv1554 : : (J u d g e Munley) : v. : : W IL L IA M SCISM, : R espondent : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER A N D NOW, to wit, this 23rd day of September 2010: 1 . The petitioner's objections (Doc. 11) to the report and recommendation of M a g is tra te Judge Martin C. Carlson are hereby OVERRULED; 2 . The Report and Recommendation (Doc. 12) is hereby ADOPTED; 3 . The instant petition for a writ of habeas corpus is hereby DISMISSED; and 4 . The Clerk of Court is directed to CLOSE the case.

B Y THE COURT:

s / James M. Munely JUDGE JAMES M. MUNLEY U n ite d States District Court

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