Ruiz v. Ebbert

Filing 5

MEMORANDUM (Order to follow as separate docket entry)If Petitioner wishes to challenge his ACCA sentence enhancement under Johnson he may do so by seeking authorization from the the appropriate Court of Appeals to file a second or successive § 2255 petition regarding his ~ohnson claim. See id. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 10/14/15. (cc)

N THE UNITED STATES ISTRICT COURT

FOR THE

MIDDLE DIS~RICT 0 ?2~~SYLVANIA

GUILLERMO RUIZ,
CIVIL NO. 3:CV-15 1612

Petitioner
v.
WARDE~

(Judge Conaboy)

DAVIJ

EBBER~,

Res

FILED
SCRANTON

nt
MEMORANDUM

Background

sently con

Guillermo Ruiz, an inmate
States Penitentiary, Lewisburg,

Pennsylvania (USP Lewisburg)

se habeas corpus petition pursuant to 28 U.S.C.

filed this
2241.

at the United

Petitioner has also s

tted an in forma

ch will be granted

application

r the sole purpose of the

filing of the petition with this Court.

Named as Respondent is

USP-Lewisburg Warden Javid Ebbert.
Ruiz states that he was convicted of be
possession

0

a felon in

amrHunition affecting interstate commerce and

possession of a firearm and silencer without a serial number in
the United States District Court for the So
Florida.

On

rn District of

r 19, 1998, Petitioner was sentenced to a

312 month term of imprisonment.

There is no indication that a

direct appeal was filed.

1

§

Petitioner acknowledges that in 2003 he filed a motion
seeking relief

pursuan~

to 28 U.S.C.

§

2255 which in part

challenged the legali y his ACCA sentence enhancement and also
fective

raised claims of ineffective assistance of counsel and
i
§

ctment.

See Doc. 3,

2255 motion was di

~

10.

According to the Petitioner, his

ssed on July 22, 2003 as being time

barred by the sentencing court.
Ruiz's pend
enhanced under the
the

resulted

action asserts that his sentence was
Career Criminal Act

(ACCA) which

sition of a "term of imprisonment exceeding

the authorized statutory maximum penalty."

Doc. 1,

5.

~

Petitioner, relying upon the June 26, 2015 United States Supreme
Court de

sion in Johnson v. United States, 135 S. Ct 2551

(2015), argues that the determination that he was s
ACCA sentence enhancement was a due process v
his federal offense was not a cr

of

ect to a

lation

cause

olence or a drug

offense and he is not a career offender.

id. at

':l

13.

Furthermore, his prior state convictions do not qualify as

"

olent or drug felonies."

that based upon the
the ACCA was

Doc. 2, p.

Ruiz elaborates

holding that the res

unconstitu~iona1

1 clause of

y vague,l he is entitled to relief

as his prior state convictions no longer quali

as a predicate

See United States v. Terry, 2015 WL 4255527 (TiL D. Pa.
July 14,
015)
recogni zed that "the catchall def ini tion of
violent felony in the ACCA is unconstitutionally vague."
2

offenses for an ACCA enhancement.

As relief, Ruiz asks that his

sentence be reduced to the statutory maximum sentence and he be
id., at p.

granted immediate release from custody.

6.

Discussion

A federal prisoner challenging the legality of his or her
sentence is generally limited to seeking relief by way of a
motion pursuant to
(3d Cir. 1997);
1154194, at *2
fil

§

119 F.3d 245,

2255.

~~~~~~~~~~~,

249

No. 08-3898, 2009 WL

(3d Cir. l'l.pr. 30, 2009) ("a sec::ion 2255 motion

in the sentencing court is the presumptive means for a

federal prisoner to challenge the validity of a conviction or
sentence").

Relief is only available under § 2241 if "it .

appears tha:: the remedy by [a

§

2255]

~otion

is inadequate or

ineffective to test the legality of his detention."
2255(e)

This language in

§

2255,

28 U.S.C.

§

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
ction for a

opportunity to challenge his

cri~e

later

emed

to be non-criminal by an intervening change in the law").
"It is the inefficacy of the
inability to use it, that is
~~=='

, not the personal

erminative."

290 F.3d 536, 538 (3d Cir. 2002).

3

"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
gate keeping requirements of the amended § 2255."

Id. at 539.

also, Alexander v. Williamson, 2009 t'JL 1020218, at *2

(3d

Cir. Apr. 16, 2009).
Ruiz's pending
validi

based argument challenges the

of his sentence which was imposed by the Sout

District of Florida.

rn

Petitioner does not contend that he is

actually innocent of the underlying federal criminal offense.
Rather, he solely contends that his ACCA sentence enhancement
was improper.

Based upon the nature of his claim, Petitioner

must follow the requirements of § 2255.
One federal appellate court recently recognized that
Johnson is a new substantive rule of constitutional law that is
retroactively applicable in a collateral attack on a final
conviction.

Price v. United States, 2015 WL 4621024

Cir. Aug. 4, 2015).

(7tf:

However, the Tenth Circuit Court of Appeals

in In Re Gieswein, 2015 F.3d 5534388 * 5 (Sept. 21, 2015) held
the opposite, deciding that the Supreme Court
state that Johnson applies retroactively.

d not expressly

Based upon this

Court's research, the Third Circuit Court of Appeals has not yet
addressed this issue.

4

However, this Court agrees with the approach
v.

Maiorana, 2015 WL 4663267 *4

recog~iz

that since

§

(M.D. Pa. Aug.

2255 plai

take~

by

6, 2015) which

y provides an

ave~ue

for

litigating the merits of a Johnson based sentencing claims,

such

an argument should be addressed by the court which is ultimately
the most appropriate forum,

i.e. the sentencing court.

the very recent decision of

~~~~,

taken to

the contrary appr

n

s

e by the Courts of Appeals regarding the

retroactivity of

~~~~,

and the fact that our Third Circuit
ss

Court of Appeals has not yet a

the issue, this Court

will likewise take the approach suggested by Wood.
s that he previously pursued

Since Petitioner acknowl

an unsuccessful § 2255 motion, he must obtain certification from
the appropriate Court of

1s to file another collateral

challenge to his sentence. However, neither the sentencing court
nor the Eighth Circuit Court of Appeals have had opportunity to
based argument.

address the validity of Light's pending

those circumstances, the reasoning set forth in
, the conflicting approaches taken by the Courts of Appeals
and Ruiz's failure to demonstrate that he is

regarding

actually innocent if the underlying federal offenses,
Petitioner's
prejudice.

§

2241 petition will be dismissed without
Anderson v.

Snyder-~orris,

5

~o.

15-CV-57, 2015 WL

5174234 *5

(E.D. Ky. sept. 2, 2015), Cockrell v. Kreuger, No.

1:15-CV-1279, 2015 WL 4648029 (C.D. Ill. Aug. 5, 2015)
If Petitioner wishes to challenge his ACCA sentence
he may do so by seeking authorization

enhancement under

from the the appropriate Court of Appeals to file a second or
successive

§

2255 petition regarding his

~ohnson

claim.

An appropriate Order will enter.

j

Uhited States District

DATED: OCTOBER

, 2015

6