Dolbin v. Warden of Allenwood Low

Filing 10

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/17/16. (Attachments: # 1 Unpublished Opinion(s))(bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MARK DOLBIN,

:
Petitioner

:
CIVIL ACTION NO. 3:16-0682

v.

:
(Judge Mannion)

Warden, Allenwood
Low Security,

:
:

Respondent
MEMORANDUM
I. Background
On April 25, 2016, Petitioner, Mark Dolbin, an inmate currently
incarcerated in the Low Security Correctional Institution, Allenwood,
Pennsylvania, filed the above captioned petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2241.
He states that he was indicted on May 14, 2003, for conspiracy to
distribute and possession with intent to distribute 500 grams or more of
methamphetamine, as well as distribution and possession with intent to
distribute 500 grams or more of methamphetamine. (Doc. 1). The indictment
was subsequently amended multiple times to include the charges of
possession of firearms by an armed career criminal, obstruction of justice,

and forfeiture, resulting in the fourth and final superseding indictment being
filed on August 4, 2004. Id.
On March 10, 2005, the jury returned a verdict against Dolbin on four
counts: conspiracy to distribute and possess with intent to distribute
methamphetamine; distribution and possession with intent to distribute
methamphetamine; possession of firearms by a convicted felon; and
obstruction of justice. Id.
On July 25, 2005, Dolbin was sentenced to life in prison. Id. Dolbin
successfully appealed that sentence and was re-sentenced to 240 months
in prison on August 31, 2007. Id.
On December 9, 2008, Dolbin filed a motion to vacate, set aside, or
correct his sentence, pursuant to 28 U.S.C. §2255. Id.
By Memorandum and Order dated May 11, 2010, Petitioner’s 2255
motion was denied without a hearing. Id.
On June 28, 2010, Dolbin appealed the denial of his §2255 motion. Id.
On January 13, 2012, the United States Court of Appeals for the Third Circuit
affirmed the denial of Petitioner’s §2255 motion. See United States v. Dolbin,
No. 10-2941 (3rd Cir. Jan. 13, 2012).
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On April 25, 2016, Dolbin filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. §2241, seeking relief based on the following:
On January 27, 2014, the Supreme Court made a “substantive”
change to 21 U.S.C. §841(b), and how it applies to 21 U.S.C.
§§846 and 841(a)(1) which was not available to the petitioner at
the time of his conviction, appeal or 28 U.S.C. §2255 motion.
This “substantive” change was due to the re-interpretation of 21
U.S.C. §841(b), in Burrage v. United States, 571 U.S. ––––, 134
S.Ct. 881, ––– L.Ed.2d ––––, 187 L.Ed. 715 (2014) . And this
“substantive” change directly affects the petitioner's sentence, as
it makes the former sentencing factors in 21 U.S.C. §841(b),
elements of the offense in 21 U.S.C. §§846 and 841(a)(1).
(Doc. 1 at 3).
By Memorandum and Order dated May 31, 2016, Dolbin’s petition was
dismissed for lack of jurisdiction and his case was closed. (Docs. 3, 4).
Presently before the Court is Petitioner’s motion for reconsideration of this
Court’s May 31, 2016 Memorandum and Order. (Doc. 9). For the reasons
set forth below, Petitioner’s motion for reconsideration will be denied.

II.

DISCUSSION
A motion for reconsideration is a device of limited utility. It may be used

only to seek remediation for manifest errors of law or fact or to present newly

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discovered evidence which, if discovered previously, might have affected the
court's decision. Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir. 1985), cert.
denied, 476 U.S. 1171 (1986); Massachusetts Mutual Life Insurance Co. v.
Maitland, Civil No. 87-0827 (M.D. Pa. March 1, 1989) (Rambo, J.).
Accordingly, a party seeking reconsideration must demonstrate at least one
of the following grounds prior to the court altering, or amending, a standing
judgment: (1) an intervening change in the controlling law; (2) the availability
of new evidence that was not available when the court granted the motion; or
(3) the need to correct a clear error of law or fact or to prevent manifest
injustice. Max’s Seafood Café v. Quineros, 176 F.3d 669, 677 (3d Cir.
1999)(citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194,
1218 (3d Cir. 1995)).

A motion for reconsideration is appropriate in

instances where the court has “...misunderstood a party, or has made a
decision outside the adversarial issues presented to the Court by the parties,
or has made an error not of reasoning, but of apprehension.” See Rohrbach
v. AT & T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995),
vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D.
Pa. 1996), quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99
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F.R.D. 99, 101 (E.D. Va. 1983). It may not be used as a means to reargue
unsuccessful theories, or argue new facts or issues that were not presented
to the court in the context of the matter previously decided. Drysdale v.
Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001) . “Because federal courts
have a strong interest in the finality of judgments, motions for reconsideration
should be granted sparingly.” Continental Casualty Co. v. Diversified Indus.
Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995).
A review of the Court’s May 31, 2016, Memorandum and Order reveals
the following with respect to this Court’s jurisdiction over Petitioner’s habeas
petition:
It is apparent that Dolbin’s petition is not viable under 28 U.S.C.
§2241, as he is once again trying to challenge his conviction and
sentence. However, to the extent that he is attempting to rely on
case law not previously available to him, i.e., Burrage, he is first
required to request permission from the Third Circuit for leave to
file a successive petition. See 28 U.S.C. §2255(h). While the
record reveals that Dolbin has already filed a §2255 motion on
other grounds, there is no indication in the petition that he has
attempted to obtain the requisite authorization to raise the
Burrage claim. As such, the petition will be dismissed for lack of
jurisdiction. See Dixon v. Schuylkill, 2015 WL 871828, slip op.
at *3 (M.D. Pa. Feb. 27, 2015) (Kosik, J) (dismissing habeas
petition where petitioner relies upon Burrage, but failed to first
seek permission from the appropriate circuit court to file a
second or successive motion pursuant to §2255). See also
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Martinez v. Oddo, 2015 WL 4557405 at *3 (M.D. Pa. Jul. 28,
2015) (Brann, J.) (same); Wall v. Holt, 2014 WL 6769947 at *4
(M.D. Pa. Dec. 1, 2014) (Kosik, J.) (reasoning that “where a
petitioner is being detained for conduct that has subsequently
been rendered non-criminal by an intervening Supreme Court
decision[,]” he “simply cannot by-pass the requirements of §2255
and pursue a §2241 habeas petition” raising a Burrage claim
without first seeking leave to file a successive §2255 motion with
the court of appeals). As such, in the absence of an order
authorizing the filing of this second or successive petition, this
Court lacks jurisdiction to entertain it.
(Doc. 3, Memorandum at 5-7).
Petitioner argues in his motion for reconsideration that this Court’s May
31, 2016, Memorandum and Order should be reconsidered on the basis of
Judge Rambo’s decision in Garner v. Warden FCI-Schuylkill, Civil No. 1:15cv-0130-SHR, 2015 WL 539840 (M.D. Pa. Feb. 10, 2015) (Rambo, J.), in
which Petitioner claims that “Judge Rambo granted Garner’s §2241 petition
after she established that there was a fundamental defect presented in
Burrage v. United States, 134 S.Ct. 881" and “believed that the saving clause
applied and granted Garner’s §2241 petition.” (Doc. 9).
Petitioner’s reliance on Garner is misplaced.
In Garner, on January 22, 2015, Magistrate Judge Carlson issued a
reported and recommendation recommending the following:
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In sum, Garner invites this Court under the guise of a habeas
petition to do something which the sentencing court must do, and
set aside his conviction due to an alleged sentencing error. We
should decline this invitation, given that Garner has made no
showing that §2255 is inadequate or ineffective to test the legality
of his conviction, and that the remedy afforded under §2241 is
not an additional, alternative, or supplemental remedy to that
prescribed under § 2255. Consequently, this Court should either
dismiss this petition without prejudice or transfer this petition to
the Northern District of Ohio pursuant to 28 U.S.C. §1404, so that
court may address these claims.
Id. Judge Rambo adopted the report and recommendation of the magistrate
judge and transferred Garner’s petition to the sentencing court pursuant to 28
U.S.C. §1404. Id. As such, Petitioner presents no evidence that this Court
misunderstood or misinterpreted the law as it applies to his situation. Dolbin’s
petition was entitled to dismissal.1 Accordingly, this Court finds that its
Memorandum and Order of May 31, 2016, is not troubled by manifest errors
of law or fact and Petitioner has not presented anything new, which if
previously presented, might have affected our decision. Consequently, the

1

To the extent that Petitioner believes his petition should have been
transferred to the sentencing court, Petitioner was not entitled to a transfer.
As this Court’s May 31, 2016 Memorandum reflected, Petitioner has already
filed a §2255 motion and now is in need of permission from the United
States Court of Appeals for the Third Circuit to file a second or successive
petition.
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motion for reconsideration will be denied. An appropriate order shall follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Dated:

October 17, 2016

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