Gibson v. Thomas
Filing
21
MEMORANDUM (Order to follow as separate docket entry) re 15 MOTION for Reconsideration re 14 Order (memorandum filed previously as separate docket entry), Order Dismissing Case, Terminate Motions filed by Bernard Gibson, Sr. Signed by Honorable A. Richard Caputo on 2/21/17. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BERNARD GIBSON, SR.,
Petitioner
v.
WARDEN J.E. THOMAS,
Respondent
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CIVIL NO. 3:CV-14-0820
(Judge Caputo)
MEMORANDUM
I.
Background
Bernard Gibson, a federal inmate presently serving a sentence for conspiracy
to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846
at the Petersburg Low Federal Correctional Institution in Petersburg, Virginia, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his Petition, Mr.
Gibson, relying on Burrage v. United States,
U.S.
, 134 S.Ct. 881, 187
L.Ed.2d 715 (2014), challenged his life sentence imposed by the United States
District Court for the District of Maryland claiming it to be “above the statutory
maximum.” (ECF No. 1, Pet.) By Memorandum and Order of January 16, 2016,
following a response by Respondent, Mr. Gibson’s Petition was dismissed. Gibson
v. Thomas, No. 3:CV-14-0820, 2016 W L 213618 (M.D. Pa. Jan. 19, 2016). The
Court explained that Mr. Gibson’s Petition was subject to dismissal because he had
failed to demonstrate circumstances that his remedy under 28 U.S.C. § 2255 was
inadequate or ineffective. (Id.) Consideration was also given to Mr. Gibson’s
supplemental request to raise a claim pursuant to McFadden v. United States,
U.S.
, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015). Althoug h both cases cited by
Mr. Gibson were decided after his initial § 2255 petition, the Supreme Court of the
United States made neither one retroactively applicable to cases on collateral
review. The Court dismissed the Petition on the basis that the Petitioner could not
meet the requirements of the saving clause announced in In re Dorsainvil, 119 F.3d
245, 261 (3d Cir. 1997).
Presently before the Court is Mr. Gibson’s motion for reconsideration arguing
the Court erred and overlooked Persaud v. United States,
U.S.
, 134 S.Ct.
1023, 188 L.Ed.2d 117 (2014) when holding that he could not challenge his
sentencing error by way of § 2241 petition. (ECF No. 15.) For the reasons set f orth
below, Mr. Gibson’s motion for reconsideration will be denied.
II.
Discussion
A motion for reconsideration under Rule 59(e) is used “‘to correct manifest
errors of law or fact or to present newly discovered evidence.’” Lazaridis v.
Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)(quoting Max’s Seafood Café ex rel. LouAnn, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). A party moving to alter or
amend a judgment pursuant to Rule 59(e) faces a difficult burden. The applicant for
reconsideration must show “at least one of the following grounds: (1) an intervening
change in controlling law; (2) the availability of new evidence; or (3) the need to
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correct a clear error of law or fact or to prevent manifest injustice.” Schumann v.
Astrazeneca Pharm., L.P., 769 F.3d 837, 848 (3d Cir. 2014) (quoting Max’s Seafood
Café, 176 F.3d at 677). Mere dissatisfaction with the Court’s ruling is not a proper
basis for reconsideration. Progressive Cas. Ins. Co. v. PNC Bank, N.A., 73
F.Supp.2d 485, 487 (E.D. Pa. 1999).
Here, aside from rearguing the allegations of his Petition, Mr. Gibson asserts
that the Court erred by ruling that he could not challenge his sentence via a § 2241
petition in light of Persuad, supra. Petitioner is mistaken that his Burrage or
McFadden challenge falls within the narrow definition of sentencing claims that can
be pursued via a § 2241 petition. In Persuad, the Supreme Court granted certiorari
and vacated the judgment based on the position taken by the Solicitor General in his
brief for the United States. Persaud v. United States,
U.S.
, 134 S.Ct.
1023, 188 L.Ed.2d 117 (2014). In his brief , the Solicitor General argued, for the first
time in the case, that a petitioner should be perm itted to argue, pursuant to § 2241,
the imposition of an erroneous mandatory minimum sentence claim based
intervening case law that has been made retroactive to cases on collateral review.
See United States v. Persaud, No. 13-6435, 2013 WL 7088877 (Dec. 20, 2013).
That unique situation is not similarly presented by Mr. Gibson. Firstly, in Persuad,
the United States Supreme Court did not adopt the Solicitor General’s position, thus
it is not controlling authority. Rather, the Supreme Court remanded the case to the
circuit court in light of the Solicitor General’s brief. Therefore, the Court could not
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have erred and therefore did not err by not applying it. Secondly, Petitioner still has
not demonstrated that he is entitled to proceed under the sav ings clause as the
Supreme Court has not held that either Burrage or McFadden is retroactively
applicable to cases on collateral review. However, the Third Circuit Court of
Appeals has confirmed that a challenge to a conviction based on Burrage, which is
an extension of the Apprendi1 and Alleyne2 decisions, does not fall into the limited
exception where § 2255 is inadequate or ineffective. Dixon v. Warden of FCI
Schuylkill, 647 F. App’x 62, 64 (3d Cir. 2016); see also Upshaw v. Warden
Lewisburg USP, 634 F. App’x 357, 359 (3d Cir. 2016). In light of the foregoing, Mr.
Gibson has not established that his remedy under § 2255 is inadequate or
ineffective.
Because Mr. Gibson identifies no newly discovered evidence or manifest
errors of law or fact within the Court’s dismissal order, his motion for reconsideration
will be denied.
An appropriate order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: February 21, 2017
1
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
2
Alleyne v. United States,
U.S.
, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
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