Yambo v. Scism et al

Filing 17

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED THAT Magistrate Judge Mannions R&R (Doc. 12) is ADOPTED and Mr. Yambos petition for writ of habeas corpus (Doc. 1) is DISMISSED. The Clerk of Court is directed to mark the case as CLOSED. Signed by Honorable A. Richard Caputo on 12/22/11. (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT YAMBO
Petitioner,
v.
WILLIAM A. SCISM, Warden of
Allenwood, LSCI,

NO. 3:10-1939

(JUDGE CAPUTO)

(MAGISTRATE JUDGE MANNION)

Respondent
MEMORANDUM
Before the Court is Magistrate Judge Mannion’s report and recommendation
(“R&R”) (Doc. 12) on petitioner Yambo’s writ of habeas corpus petition brought under 28
U.S.C. § 2241 along with Mr. Yambo’s objections (Doc. 13) and Warden Scism’s
response. Mr. Yambo argues he is entitled to relief under § 2241 because he is actually
innocent of being a career offender under U.S.S.G. § 4B1.1. Magistrate Judge Mannion
recommends Mr. Yambo’s petition be denied because § 2241 cannot be extended to
prisoners who only claim innocence of sentence. Citing Pollard v. Yost, 406 Fed.Appx.
635 (3d Cir. 2011), Mr. Yambo argues in his objections that it can. However, Pollard held
that § 2241 does not reach sentences based on plea agreements. The Court will
therefore adopt the Magistrate Judge’s R&R and will dismiss Mr. Yambo’s petition.
BACKGROUND
In September 2003, Mr. Yambo entered a plea of guilty in the United States District
Court for the Southern District of New York to charges arising out of a drug conspiracy.
He was sentenced as a career offender under U.S.S.G. § 4B1.1 to 262 months in prison.
Mr. Yambo did not file a direct appeal of his conviction or sentence. He also did not file

any challenge to either under 28 U.S.C. § 2255. In February 2010, Mr. Yambo filed a
petition for writ of audita querela under 28 U.S.C. § 1651 which was denied. Then, in
September 2010, he filed the instant action in which he argues that he is actually innocent
of being a career offender under U.S.S.G. § 4B1.1. In his R&R, Magistrate Judge
Mannion has helpfully synthesized Mr. Yambo’s main contention:
The petitioner argues that the sentencing court relied upon his prior drug
convictions in order to sentence him as a career offender without examining the
statutes of conviction and comparing their elements to the requirements of the
enhancing provisions of U.S.S.G. §4B1.1. The petitioner contends that, at the
time of his prior convictions, the identity of the controlled substances had only
been a sentencing factor and not an element of the offense. Despite this, the
petitioner contends that the sentencing court relied upon the identity of
controlled substances in the prior convictions to determine his career offender
status.
(R&R p. 2.) Mr. Yambo argues he is entitled to bring this action under § 2241 since §2255
is inadequate to test the legaility of his claims. This is because the issue was unavailable
to him prior to the United States Supreme Court’s clarification of the difference between
elements and sentencing factors in United States v. O’Brien, — U.S. —, 130 S.Ct. 2169
(2010); Dean v. United States, — U.S. —, 129 S.Ct. 1849 (2009).
In his R&R, Magistrate Judge Mannion recommended Mr. Yambo’s petition be
denied. Mr. Yambo filed his objections and Mr. Scism filed a response.
STANDARD OF REVIEW
Where objections to the magistrate judge’s report are filed, the Court must conduct
a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d
1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are
both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de

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novo review, the Court may accept, reject, or modify, in whole or in part, the factual
findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens
v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the
statute permits the Court to rely on the recommendations of the magistrate judge to the
extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980);
Goney, 749 F.2d at 7; Ball v. United States Parole Comm’n, 849 F. Supp. 328, 330 (M.D.
Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined
by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at
7. At the very least, the Court should review uncontested portions for clear error or
manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
DISCUSSION
The Court will adopt the Magistrate Judge’s R&R. § 2241 is a narrowly carved
remedy to the pleading strictures of § 2255. It is usually only allowed where a petitioner
alleges actual innocence due to an intervening change in the law. While the Third Circuit
suggested in Pollard that § 2241 may extend to innocence of sentence claims, it also held
§ 2241 inapplicable to sentences based on plea agreements.
Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal
prisoners can challenge their convictions or sentences that are allegedly in violation of the
Constitution. See Davis v. United States, 417 U.S. 333, 343(1974). A “safety valve”
provision allows challenges to a conviction or sentence in certain narrow circumstances
via the federal courts' § 2241 jurisdiction when a prisoner can show that § 2255 is
“inadequate or ineffective to test the legality of his detention.” § 2255(e). The safety valve

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provision was not amended by AEDPA. Section 2241 states that “[w]rits of habeas corpus
may be granted by the Supreme Court, any justice thereof, the district court and any
circuit judge within their respective jurisdictions” to prisoners “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a),(c)(3).
In In re Dorsainvil, the Third Circuit interpreted the statutory language providing that
§ 2255 must be used to raise a challenge to the validity of a conviction or sentence unless
that section is “inadequate or ineffective.” 119 F.3d 245, 251 (3d Cir.1997). In that case,
the appellant was in the “unusual position” of having no prior opportunity to challenge his
conviction for a crime that an intervening change in substantive law could negate with
retroactive application. Id. The Third Circuit therefore allowed the § 2241 petition to go
forward since a subsequent change of law made the conduct the appellant was convicted
of no longer criminal. Dorsainvil, 119 F.3d at 251-52. In the narrow circumstances the
appellant in that case faced, the Dorsainvil court held that § 2255 was inadequate to test
the legality of his detention. Id. at 251.
Subsequently, in Levan v. Sneizek, appellant had been sentenced to 293 months
imprisonment after being convicted of conspiracy to manufacture more than one kilogram
of methamphetamine. 325 Fed.Appx. 55 (3d Cir. 2009). After filing two motions under §
2255 which were denied, appellant filed a petition under § 2241. He claimed he was
actually innocent of the sentence he received due to a clarification of the law subsequent
to his conviction. In affirming the district court’s dismissal of the petition, the Third Circuit
distinguished the case from Dorsainvil: “[i]n Dorsainvil, we permitted a § 2241 petition to
go forward where a subsequent change of law made the conduct the federal prisoner was

4

convicted of no longer criminal. But [appellant] does not contend that his conduct is no
longer criminal; he argues only that he is innocent of his sentence in light of Booker.”
Levan, 325 Fed.Appx. at 57 (internal citation omitted)(emphases added).
More recently, however, in Pollard v. Yost, the Third Circuit appeared to question
its previous limitation on the Dorsainvil exception to cases of actual innocence. There,
appellant, pursuant to a plea agreement, had pled guilty to conspiracy to possess PCP
with intent to distribute. 406 Fed.Appx. at 636. Although he disagreed, he was classified
as a career offender under U.S.S.G. § 4B1.1 and sentenced in 2002 to 194 months
imprisonment. Appellant's career offender classification was based in part on a 1983
state court drug conviction under former Ohio Rev.Code § 2925.03(A)(6). Although he
did not directly appeal his sentence, he did file a petition under § 2255 arguing, inter alia,
that he had been erroneously classified as a career offender. The petition was denied.
In 2006, the Sixth Circuit held that § 2925.03(A)(6) was not a predicate offense for career
status under § 4B1.1. United States v. Montanez, 442 F.3d 485, 487 (6th Cir. 2006).
Appellant then filed for relief under § 2241, claiming § 2255 was inadequate to test the
legality of his detention since Montanez had been decided after the disposition of his
previous § 2255 petition. Id. at 637. While noting similarities between his case and
Dorsainvil, the district court dismissed his petition. In affirming the dismissal, the Third
Circuit held that appellant had not established there would be a “complete miscarriage”
of justice were the court to not exercise § 2241 jurisdiction:
Because it was a plea agreement that determined his sentence, we cannot be
certain what it would have been absent that agreement. As we cannot
determine whether he would have been sentenced to a shorter term of
imprisonment had Montanez already been decided, or whether the Government
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would now make the same plea agreement as it did in 2002 if we remanded
under a nullified plea agreement, [appellant] cannot demonstrate actual
innocence of his sentence, regardless whether his career offender classification
was in error.
Pollard, 406 Fed.Appx. at 638. In so ruling, however, the Third Circuit left open the
possibility that, “Dorsainvil could be applied to a petitioner who can show that his or her
sentence would have been lower but for a change in substantive law made after
exhaustion of the petitioner's direct and collateral appeals under § 2255.” Id.
Here, Mr. Yambo argues the Magistrate Judge incorrectly relied on Levan rather
than Pollard in recommending dismissal of his petition. But the holding in Pollard makes
clear that its suggestion that § 2241 could reach “innocence of sentence” claims does not
apply to sentences based on plea agreements. Like the appellant in Pollard, Mr. Yambo’s
plea agreement determined his sentence. Thus, the Court does not know what his
sentence would have been absent that agreement. Because the Court cannot determine
whether or not his sentence would have been shorter if O’Brien and Dean had already
been decided, Mr. Yambo cannot demonstrate actual innocence of his sentence. The
Magistrate Judge’s R&R will therefore be adopted and Mr. Yambo’s petition will be
dismissed.
CONCLUSION
Because Mr. Yambo’s petition fails to fall within the narrow parameters of § 2241,
his petition will be denied. An appropriate order follows

12/22/11
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
6

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT YAMBO
NO. 3:10-1939

Petitioner,
v.

(JUDGE CAPUTO)

WILLIAM A. SCISM, Warden of
Allenwood, LSCI,

(MAGISTRATE JUDGE MANNION)

Respondent
ORDER
NOW, this

22nd

day of December, 2011, IT IS HEREBY ORDERED THAT

Magistrate Judge Mannion’s R&R (Doc. 12) is ADOPTED and Mr. Yambo’s petition for writ
of habeas corpus (Doc. 1) is DISMISSED. The Clerk of Court is directed to mark the
case as CLOSED.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge