Volcy v. United States of America et al

Filing 18

MEMORANDUM (Order to follow). Signed by Honorable A. Richard Caputo on 3/21/2012. (bg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HARDAWAY VOLCY,
CIVIL ACTION NO. 3:11-CV-2072

Petitioner,
v.

(JUDGE CAPUTO)
UNITED STATES OF AMERICA;
RONNIE HOLT; KRIS ERICKSON; and
LLOYD BENDER,

(MAGISTRATE JUDGE MANNION)

Respondents.
MEMORANDUM

Presently before the Court is the Report and Recommendation of Magistrate Judge
Malachy E. Mannion (Doc. 15), recommending that this action be dismissed. As Magistrate
Judge Mannion was correct to determine that Volcy’s Petition failed to make the necessary
showing that relief under 28 U.S.C. § 2255 would be ineffective and inadequate, the Court
will adopt the Report and Recommendation and will dismiss Volcy’s Petition.
BACKGROUND
Petitioner Hardaway Volcy is a prisoner at United States Penitentiary-Canaan in
Waymart, Pennsylvania. He is serving a federal sentence, imposed by the United States
District Court for the Middle District of Florida, for: (1) conspiracy to distribute and possess
with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846
and 841(b)(1)(A); and (2) possession with intent to distribute 100 kilograms or more of
marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. §2. (Am. J.,
Doc. No. 1-3 at 2.) Volcy states that he is currently serving a 97-month term for these
convictions. On November 7, 2011, Volcy filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2241. (Pet. at 11, Doc. 1-2.) His Petition is based on his alleged innocence,
double jeopardy issues, and infirmities with the district court’s jurisdiction over the matter.
(Id. at 6.) Volcy represents that he has previously filed two unsuccessful habeas corpus
petitions under 28 U.S.C. § 2255. (Id.)
On November 29, 2011, the Court directed Volcy to make a “Miller” election, informing
him that he could have his Petition ruled on as filed, have it re-characterized as a Section
2255 motion and heard as such, or that he could withdraw his petition and file one
all-inclusive Section 2255 motion within the statute of limitations period. See United States
v. Miller, 197 F.3d 644, 652 (3d Cir.1999). On December 6, 2011, Volcy filed his Notice of
Election, declaring that his motion was not brought under Section 2255, and requesting that
it should be ruled on as filled.
Magistrate Judge Mannion, construing Volcy’s Petition as a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, reviewed the petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts.1 While Volcy argues in
his Petition that the use of a Section 2255 habeas motion would be ineffective and
inadequate where the statute of limitations has expired and the Section 2255 motion has
been exhausted, the Magistrate Judge determined that this was not the case, and
recommended that the petition be dismissed for a lack of jurisdiction.
Recommendation at 6-7, Doc. 15.)

(Report and

Volcy filed an objection to the Report and

Recommendation on January 17, 2012.

In it, he argues that his Petition should be

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Rule 4 provides, in relevant part, that: “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 and direct the clerk to notify the petitioner.”
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considered directly under Section 2241, and even if it is considered under Section 2255 as
a threshold determination, that his Petition triggers Section 2255's “safety valve” provision
allowing him to opt for relief under Section 2241. Volcy’s Objections to the Report and
Recommendation are now ripe for review.
DISCUSSION
I. Legal Standard for Reviewing a Report and Recommendation
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 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). As such, the Court reviews the portions
of the Report and Recommendation to which the petitioner objects de novo. The remainder
of the Report and Recommendation is reviewed for clear error.

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II. Analysis
In pertinent part, Volcy objects to Magistrate Judge Mannion’s determination that his
Petition cannot proceed as a habeas petition under 28 U.S.C. § 2241.
A.

Proceeding Directly Under 28 U.S.C. § 2241

Volcy argues that his Petition may proceed directly under Section 2241 as he “is not
testing the validity of the judgment or the sentence but rather is specifically challenging the
Warden[‘s] execution of a void judgment.” (Objection at 2, Doc. 16.) While “[m]otions
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,”
Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002), it is true that “federal prisoners
challenging some aspect of the execution of their sentence, such as denial of parole, may
proceed under Section 2241,” Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) (emphasis
added). “Habeas corpus is the proper remedy if a petition does not attack the federal
sentence itself, in which case the petitioner need not file a motion in the sentencing court
under 28 U.S.C.A. § 2255, since the remedy by motion is inadequate or ineffective to test
the legality of the petitioner's detention.” 16A Fed. Proc., L. Ed. § 41:144. Although
evaluated on a case-by-case basis, challenges to the execution of a sentence in the Third
Circuit are not triggered by “garden variety” adjustments in the administration of a sentence,
but instead require changes that have a “qualitative difference” on the execution of a
sentence, such as being moved from a penal institution to a halfway house. McGee v.
Martinez, 627 F.3d 933, 936 (3d Cir. 2010) (citing Woodall v. Fed. Bureau of Prisons, 432
F.3d 235, 243 (3d Cir. 2005)).

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In the instant case, Volcy’s assertion that his Petition challenges the execution of his
sentence is merely semantic. Volcy argues that “[t]he judgment can not be anything but void
since no evidence or basis is formed anywhere on the district court’s records to supply
sufficient evidence of the court’s subject matter jurisdiction,” and puts emphasis on the fact
that the judgment is “void rather than a voidable issue.” (Objection at 3, Doc. 16.) Yet, as
a legal matter, there is no indication that the judgment of district court has actually been
voided, and it is clear that Volcy is challenging the execution of his sentence only insofar as
it is predicated on an allegedly invalid conviction. This challenge is not limited to the
execution to the sentence, and to allow it to proceed as such would eviscerate any distinction
between challenges to the imposition of sentences and challenges to the execution of those
sentences. Therefore, Volcy’s Petition was properly construed by the Magistrate Judge as
one challenging his conviction and sentence and not originally falling within the domain of
Section 2241.
B.

Requirements Imposed by 28 U.S.C. § 2255

Magistrate Judge Mannion was also correct in determining that Volcy’s petition could
not proceed under Section 2241 by triggering the “safety valve” provision of Section 2255.
As an initial matter, Section 2255 is “the presumptive means by which federal prisoners can
challenge their convictions or sentences that are allegedly in violation of the Constitution.”
Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). Therefore, in order to secure
relief under Section 2241, it must be the case “that the remedy by [Section 2255] is
inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). This
language within Section 2255 “is commonly referred to as § 2255's ‘savings clause’ or ‘safety

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valve.’” Osborne v. Longley, Civ. Act. No. 10-81 Erie, 2012 WL 760942 at *3 (W.D. Pa. Mar.
07, 2012). Volcy argues that this “savings clause was aimed solely at practical problems
such as getting the movant to hearing and not to supercede traditional habeas corpus.”
(Objection at 3, Doc. 16.) Further, he argues that disallowing petitioners to opt out of Section
2255 “would clearly foreclose on a massive constitutional issue in that the writ of habeas
corpus would be suspended in violation of [the Constitution].” (Id.)
The purpose of allowing petitions to proceed under Section 2241 where a Section
2255 operation would be inadequate or ineffective is to “ensure that petitioners have a fair
opportunity to seek collateral relief, not to enable them to evade procedural requirements.”
Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002). The aim being to
ensure that “the habeas corpus remedy shall remain open to afford the necessary hearing.”
United States v. Hayman, 342 U.S. 205, 223 (1952). Of course, “unless a § 2255 motion
would be ‘inadequate or ineffective,’ a habeas corpus petition under § 2241 cannot be
entertained by the court.” Cradle, 290 F.3d at 538.
In order for a Section 2255 motion to be inadequate or ineffective, the petitioner must
demonstrate “that some limitation of scope or procedure would prevent a § 2255 proceeding
from affording him a full hearing and adjudication of his wrongful detention claim.” Id. at 538.
The determinative factor is the “inefficacy of the remedy,” rather than the petitioner’s
“personal inability to use it.” Id. at 538-39 (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.
Cir.1986)). Specifically, “Section 2255 is not inadequate or ineffective merely because the
sentencing court does not grant relief, the one-year statute of limitations has expired, or the
petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255.”

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Id. at 539. Instead, to establish inadequacy or ineffectiveness, the petitioner must show
something akin to an intervening change in the law or other extraordinary circumstances.
Id.

While the nature of such “rare circumstances” have not been fully elaborated,

Marmolejos v. Holder, 358 Fed. Appx. 289, 290 (3d Cir. 2009), examples in the Third Circuit
appear limited to instances where “an intervening change in substantive law has potentially
made the conduct for which the petitioner was convicted non-criminal.” Robinson v.
Bledsoe, No. 11–4491, 2012 WL 812355 at *1 (3d Cir. Mar. 13, 2012) (per curiam) (citing
In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997)).
Here, Volcy offers no such extraordinary circumstances triggering the safety valve of
Section 2255. He merely avers that Section 2255 would be “inaffective [sic] and inadequate
to use, where, 1) statute of limitation has expired over (1) one year, and 2) § 2255 motion
has been exhusted [sic].” (Pet. at 6, Doc. 1-2.) As explained above, a failure to secure relief
or to meet the one-year statute of limitations is insufficient to trigger a habeas claim under
Section 2241, and I agree with the Magistrate Judge that Volcy has failed to meet his
burden. Further, I find that leave to amend on this issue would be futile as Volcy has already
expressly considered whether Section 2255 would be ineffective or inadequate and has
presented no sufficient reasons that it would be, namely that there has been a substantive
change in the intervening law. Therefore, I will adopt Magistrate Judge Mannion’s Report
and Recommendation that Volcy has failed to make the requisite showing on this matter and
will dismiss the Petition for lack of jurisdiction.

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CONCLUSION
As Volcy’s Section 2241 Habeas Petition challenges his conviction, it is not the type
that can be originally brought under 28 U.S.C. § 2241. Instead, as the sort which must be
brought pursuant to 28 U.S.C. § 2255, Volcy must therefore demonstrate that Section 2255
would be inadequate or ineffective to test the legality of his conviction or sentence in order
to then proceed under Section 2241. Volcy has failed to meet this burden. As such, I will
adopt Magistrate Judge Mannion’s Report and Recommendation dismissing the Petition for
lack of jurisdiction. An appropriate order follows.

March 21, 2012
Date

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

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