Wolters v. Thomas
Filing
5
MEMORANDUM For the reasons discussed above, Petitioners 28 U.S.C. § 2241 Petition (Doc. 1) is dismissed without prejudice and his Application to proceed in forma pauperis (Doc. 4) is granted for this filing only. (See Memorandum)Signed by Honorable Richard P. Conaboy on 10/12/12. (cc, )
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW WOLTERS,
:
:
:CIVIL ACTION NO. 3:CV-12-1706
:
:(JUDGE RICHARD P. CONABOY)
:
:
:
:
Petitioner
v.
WARDEN THOMAS,
Respondent
___________________________________________________________________
MEMORANDUM
Andrew Wolters, an inmate presently confined at the United
States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg), filed
this pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 on August 27, 2012.
(Doc. 1.)
The Petition is
accompanied by an Application to proceed in forma pauperis.
4.)
(Doc.
For the reasons discussed below, Petitioner will be granted
leave to proceed in forma pauperis for the sole purpose of the
filing of this action with this Court and his Petition is dismissed
without prejudice.
I. Background
Petitioner names “Warden Thomas” as the Respondent in this
action.1
Petitioner states that he was sentenced in November 1999
in the United States District Court for the Central District of
1
The only properly named Respondent in a federal habeas
corpus action is Petitioner’s custodial official. See 28 U.S.C. §
2242.
California following convictions for robbery with use of a weapon
under 18 U.S.C. § 2113(d) and use of a firearm during a crime of
violence under 18 U.S.C. § 924(c).
(Doc. 1 at 1-2, 7.)
After Petitioner’s appeal to the Ninth Circuit Court of
Appeals was denied, Petitioner filed a petition for writ of
certiorari in the United States Supreme Court which was denied in
March 2003.
(Doc. 1 at 2-3.)
Petitioner filed a 28 U.S.C. § 2255
motion in the United States District Court for the Central District
of California in 2003 which was also denied.
(Doc. 1 at 4.)
He
filed a motion under 28 U.S.C. § 2244(b)(3)(A) in the Ninth Circuit
Court of Appeals seeking permission to file a second or successive
Section 2255 motion to challenge his conviction and sentence.
(Doc. 1 at 4.)
The motion was denied on August 6, 2012.
(Id.)
With the filing of this 28 U.S.C. § 2241 Petition, Petitioner
raises two grounds for relief: 1) the federal government improperly
exercised jurisdiction over his state bank robbery charge; and 2)
he was “subjected to impermissible double counting” when he was
sentenced under 18 U.S.C. §2113(d) for use of a weapon during a
crime of robbery and also sentenced under 18 U.S.C. § 924(c) for
use of a firearm during a crime of violence.
(Doc. 1 at 7.)
Petitioner asserts that 28 U.S.C. § 2255 is inadequate or
ineffective to challenge his conviction or sentence because his
motion seeking to file a second or successive § 2255 motion was
denied.
(Doc. 1 at 5.)
2
II. Discussion
A. Standard of Review
Habeas corpus petitions are subject to summary dismissal
pursuant to Rule 4 (“Preliminary Review”) of the Rules Governing
Section 2254 Cases in the United States District Courts, 28 U.S.C.
foll. § 2254 (2004).
See, e.g., Mutope v. Pennsylvania Board of
Probation and Parole, Civil No. 3:CV-07-472, 2007 WL 846559, at *2
(M.D. Pa. Mar. 19, 2007).
The provisions of Rule 4 are applicable
to § 2241 petitions under Rule 1(b)).
See, e.g., Patton v. Fenton,
491 F. Supp. 156, 158-59 (M.D. Pa. 1979).
Rule 4 provides in pertinent part: “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.”
A
petition may be dismissed without review of an answer “when the
petition is frivolous, or obviously lacking in merit, or where . .
. the necessary facts can be determined from the petition itself .
. . .”
Gorko v. Holt, Civil No. 4CV05956, 2005 WL 1138479, at *1
(M.D. Pa. May 13, 2005) (quoting Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970)).
Habeas corpus review under § 2241 “allows a federal prisoner
to challenge the ‘execution’ of his sentence.”
Woodall v. Federal
Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).
When
challenging the validity of a federal conviction, and not the
3
execution of his sentence, a federal prisoner is generally limited
to seeking relief by way of a motion pursuant to § 2255.
In re
Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); Russell v. Martinez,
No. 08-3898, 2009 WL 1154194, at *2 (3d Cir. Apr. 30, 2009) (“a
section 2255 motion filed in the sentencing court is the
presumptive means for a federal prisoner to challenge the validity
of a conviction or sentence”).
A challenge can only be brought
under § 2241 if “it . . . appears that the remedy by [a § 2255]
motion is inadequate or ineffective to test the legality of his
detention.”
28 U.S.C. § 2255(e).
This language in § 2255, known
as the safety-valve clause, must be strictly construed.
Dorsainvil, 119 F.3d at 251; Russell, 2009 WL 1154194, at *2 (the
safety valve “is extremely narrow and has been held to apply in
unusual situations, such as those in which a prisoner has had no
prior opportunity to challenge his conviction for a crime later
deemed to be non-criminal by an intervening change in the law”).
“It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.”
States, 290 F.3d 536, 538 (3d Cir. 2002).
Cradle v. United
“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” for filing a second or successive § 2255 motion.
Id.
at 539; see also Alexander v. Williamson, 324 F. App’x 149, 150 (3d
4
Cir. 2009) (not precedential).
Petitioner is clearly challenging the validity of his 1999
federal sentence.
Thus, he must do so by following the
requirements of § 2255.
As set out above, Petitioner has already
unsuccessfully sought § 2255 relief.
Consequently, he must obtain
certification from the Ninth Circuit Court of Appeals to file
another collateral challenge to his conviction and sentence.
The
fact that he is unlikely to secure such a certification does not
render the § 2255 process “inadequate or ineffective.”
Likewise,
the fact that the Central District of California and the Ninth
Circuit Court of Appeals previously denied his prior sentence
related arguments does not make his present claims cognizable in a
§ 2241 action.
Furthermore, Petitioner’s pending claims are not based upon a
contention that his conduct is no longer criminal as a result of
some change in the law.
Nor has he shown that he was unable to
present his claims on direct appeal or in his § 2255 proceedings.
As recognized in Pollard v. Yost, No. 07-235, 2008 WL 4933599 (W.D.
Pa. Nov. 18, 2008), for a challenge to a federal conviction to be
presented by a federal inmate by way of a § 2241 petition, there
must not only be
a claim of actual innocence but a claim of
actual innocence coupled with the inability
to have brought the claim before because of
a change in the construction of the criminal
statute by a court having the last word on
5
the proper construction of the statute,
which change rendered what had been thought
to be criminal within the ambit of the
statute, no longer criminal.
2008 WL 4933599, at *6.
Clearly, Petitioner’s claims do not fall
within the Dorsainvil exception.
See Levan v. Sneizek, No. 08-
4116, 2009 WL 997442, at *2 (3d Cir. April 15, 2009); Smith v.
Snyder, 48 F. App’x 109, 110-11 (6th Cir. 2002).
Since § 2255 is not inadequate or ineffective to test the
legality of Petitioner’s conviction, his § 2241 Petition will be
dismissed for lack of jurisdiction.
This dismissal has no effect
on Petitioner’s right to again seek authorization from the Ninth
Circuit Court of Appeals to file a second or successive § 2255
petition.
III. Conclusion
For the reasons discussed above, Petitioner’s 28 U.S.C. § 2241
Petition (Doc. 1) is dismissed without prejudice and his
Application to proceed in forma pauperis (Doc. 4) is granted for
this filing only. An appropriate Order will enter.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 12, 2012 ____________________
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?