Cobbin v. Hufford
Filing
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MEMORANDUM Since there is no basis for a determination that § 2255 is inadequate or ineffective to test the legality of Petitioners conviction, his § 2241 petition will be dismissed for lack of jurisdiction. Of course, this dismissal has no effect on Petitioners right to file a section 2255 motion in the United States District Court for the Eastern District of Michigan, or if appropriate seek authorization from the appropriate Court of Appeals to file a second or successive § 2255 petition. An appropriate Order will enter.(See Memorandum)Signed by Honorable Richard P. Conaboy on 11/28/12. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ALONZO DARNELL COBBIN,
Petitioner
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v.
H. L. HUFFORD,
Respondent
CIVIL NO. 3:CV-12-2354
(Judge Conaboy)
MEMORANDUM
Background
Alonzo Darnell Cobbin, an inmate presently confined at the
Schuylkill Federal Correctional Institution, Minersville,
Pennsylvania (FCI-Schuylkill), initiated this pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Named
as Respondent is the Warden H. L. Hufford of FCI-Schuylkill.1
Petitioner will be granted temporary leave to proceed in forma
pauperis for the sole purpose of the filing of this action with
this Court.
Petitioner states that he was arrested in Flint, Michigan,
on December 1, 2009.
Cobbin adds that he was subsequently
indicted by a federal grand jury on charges of being a felon in
possession of a firearm (two counts) and possession with intent
to distribute cocaine.
According to the Petition, Cobbin, while
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The only properly named Respondent in a federal habeas
corpus action is Petitioner’s custodial official. See 28 U.S.C. §
2242.
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represented by counsel, entered a guilty plea in the United
States District Court for the Eastern District of Michigan to
one count of being a felon in possession of a firearm.
On
August 13, 2010, Petitioner was sentenced to a 115 month term of
imprisonment which was to run concurrently with his Michigan
state sentence.
Petitioner’s pending action claims entitlement to federal
habeas corpus relief on the grounds that: (1) the Eastern
District of Michigan lacked jurisdiction over his criminal
prosecution; (2) he was never served with a criminal complaint;
(3) there was no signed plea agreement; (4) his guilty plea was
not made knowingly, voluntarily, and intelligently; (5) an
Anders2 brief outlining the case and any potential grounds for
appeal was not filed by Petitioner’s trial counsel; (6) the
indictment did not charge Cobbin with all essential elements;
(7) the sentence was premised on an incorrect criminal history
score; and (8) ineffective assistance of counsel.
See Doc. 1,
pp. 2-3.
There is no
Petitioner seeks his immediate release.
indication by Cobbin that he filed a direct appeal or sought
relief via a petition pursuant to 28 U.S.C. § 2255.
Discussion
Habeas corpus petitions are subject to summary dismissal
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See Anders v. California, 386 U.S. 738 (1967).
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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, 2007 WL 846559 *2 (M.D. Pa. March
19, 2007)(Kosik, J.).
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, 2005 WL 1138479
*1(M.D. Pa. May 13, 2005)(McClure, J.)(quoting Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970).
Petitioner generally argues that he may bring his present
claims of unconstitutional conviction and sentence in either a §
2255 petition or if that remedy is foreclosed, via a § 2241
petition.
See Doc. 1, p. 28.
He adds that this Court has
jurisdiction over his § 2241 action by virtue of his confinement
at FCI-Schuylkill.
Alternatively, Cobbin requests that this
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matter be transferred to an appropriate federal court if it is
concluded that this Court does not have jurisdiction.
See id.
When challenging the validity of a federal sentence and
not its execution,3 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, 325 Fed. Appx. 45, 47 (3d Cir. 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.”
§ 2255(e).
28 U.S.C.
This language in § 2255, known as the safety-valve
clause, must be strictly construed.
Dorsainvil, 119 F.3d at 251;
Russell, 325 Fed. Appx. at 47 (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 noncriminal by an intervening change in the law”).
“It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.”
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Cradle v. United
A federal prisoner may challenge the execution of his
sentence by initiating an action pursuant to § 2241. See Woodall
v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).
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States, 290 F.3d 536, 538 (3d Cir. 2002).
“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.”
Id. at 539.
See also, Alexander v. Williamson, 324 Fed. Appx. 149, 151 (3d
Cir. 2009).
Petitioner is clearly challenging the validity of his 2010
federal guilty plea and sentence which was imposed by the Eastern
District of Michigan.
requirements of
Thus, he must do so by following the
§ 2255.
As previously noted, there is no
indication that Petitioner either filed a direct appeal or
previously sought relief via a § 2255 action.
Cobbin’s instant 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 Petitioner shown that he is unable to
present his claims via a § 2255 proceeding.
As recognized by the
Hon. Kim R. Gibson in Pollard v. Yost, No. 07-235, 2008 WL
4933599, at *6 (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
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the construction of the criminal statute by a court having the
last word on 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.”
Clearly, Cobbin’s claims do
not fall within the narrow Dorsainvil exception to the general
rule that section 2255 provides the exclusive avenue by which a
federal prisoner may mount a collateral challenge to his
conviction or sentence.
See Levan v. Sneizek, 325 Fed. Appx. 55,
57 (3d Cir. April 2009).
Since there is no basis for a determination that § 2255 is
inadequate or ineffective to test the legality of Petitioner’s
conviction, his § 2241 petition will be dismissed for lack of
jurisdiction.
Of course, this dismissal has no effect on
Petitioner’s right to file a section 2255 motion in the United
States District Court for the Eastern District of Michigan, or if
appropriate seek authorization from the appropriate Court of
Appeals to file a second or successive § 2255 petition.
An
appropriate Order will enter.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: NOVEMBER 28, 2012
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