Parker v. Warden

Filing 5

MEMORANDUM (Order to follow as separate docket entry)Since there is no basis for a determination that § 2255 is inadequate or ineffective to test the legality of Petitioners sentencing enhancement, his § 2241 petition will be dismissed for lack of jurisdiction. Of course, this dismissal has no effect on Petitioners right to seek permission to pursue a successive § 2255 action. An appropriate order will enter.Signed by Honorable Richard P. Conaboy on 6/6/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

JOHN D. PARKER,

:
:
Petitioner
:
CIVIL NO. 3:CV-17-765
:
v.
:
(Judge Conaboy)
:
WARDEN FCI-SCHUYLKILL,
:
:
Respondent
:
________________________________________________________________
MEMORANDUM
Background
This pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 was filed by John D. Parker, an inmate
presently confined at the Schuylkill Federal Correctional
Institution, Minersville, Pennsylvania (FCI-Schuylkill).
as Respondent is the FCI-Schuylkill Warden.

Named

The required filing

fee has been paid.
Petitioner states that he pled guilty to two counts of
armed bank robbery on December 29, 2008 in the United States
District Court for the Eastern District of Pennsylvania. He was
thereafter sentenced on June 8, 2009 as a career offender to
concurrent 228 month terms of imprisonment.1

1

Parker explains that two prior New York state drug
convictions for criminal sale of cocaine were used as predicate
offenses to designate him as being a career offender. See Doc. 2,
p. 1.
1

According to the petition, Parker’s conviction and
sentence were affirmed by the United States Court of Appeals for
the Third Circuit on April 20, 2010 following a direct appeal.
The appeal argued that Petitioner’s career offender sentence was
substantively unreasonable, and the sentencing court failed to
consider 18 U.S.C. § 3553 factors.

See Doc. 1, ¶ 13.

Parker acknowledges that he also previously filed a
petition for relief pursuant to 28 U.S.C. § 2255 with the
sentencing court.

His petition is described as asserting claims

of ineffective assistance of counsel, impermissible enhancement
of his prior criminal history score; and violation of the plea
agreement by the prosecution because it made a sentencing
recommendation.

See id., ¶ 3.

Parker’s § 2255 petition was

denied by the Eastern District of Pennsylvania on December 19,
2011.

The Petitioner also indicates that his request for

issuance of a certificate of appealability was denied.

See id.

Parker further admits that he filed a motion seeking
permission to file a successive § 2255 action based upon the
United States Supreme Court’s decision in Descamps v. United
(2013)2 which was denied by

States, 570 U.S.___ , 133 S.Ct. 2276
the Third Circuit on October 30, 2014.

2

Offenses for a violent felony or a serious drug offense
maybe used as predicate offenses for a Armed Career Criminal Act
(ACCA) sentence enhancement. See 18 U.S.C. § 924(e)(1). Descamps
concerned the question of whether the use of a burglary conviction
as a violent felony offense was appropriate.
2

In his pending action, Parker claims that he is entitled
to federal habeas corpus relief because he was improperly
sentenced as a career offender on the grounds under the
standards recently announced in Mathis v. United States, ___
U.S. ___, 136 S. Ct 2243 (2016).

See id. at ¶ 14.

Petitioner

contends that the two prior drug convictions which were used as
predicate offenses in designating him as a career offender are
no longer considered controlled substance offenses under Mathis.
Based upon the nature of Petitioner’s allegations, his action
will be construed as challenging the legality of his federal
sentence.
Discussion
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, 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
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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).
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).
A habeas corpus petition may be brought by a prisoner who seeks
to challenge either the fact or duration of his confinement in
prison.

Preiser v. Rodriguez, 411 U.S. 475 (1973), Telford v.

Hepting, 980 F.2d 745, 748 (3d Cir.), cert. denied, 510 U.S. 920
(1993).

Federal habeas relief is available only “where the

deprivation of rights is such that it necessarily impacts the
fact or length of detention.”

Leamer v. Fauver, 288 F.3d 532,

540 (3d Cir. 2002).
When challenging the validity of a federal sentence, and
not the 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

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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 of the amended § 2255.”

Id. at 539.

See also, Alexander v. Williamson, 324 Fed Appx. 149, 151 (3d
Cir. Apr. 16, 2009).
Petitioner’s instant claim is not based upon a contention
that the conduct which led to his conviction is no longer
criminal as a result of some change in the law.

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Rather, Parker’s

action only challenges his sentence enhancement.

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
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.”
Petitioner is clearly challenging the validity of his
sentence enhancement which was imposed by the Eastern District of
Pennsylvania.
of § 2255.

Thus, he must do so by following the requirements

Parker indicates that his pending argument was not

previously raised because Mathis was not announced until after
final disposition of his direct appeal and § 2255 action.
Petitioner adds that although Mathis has not been determined to
apply retroactively, some district courts have recognized that
Descamps, a companion case to Mathis can be applied
retroactively.
As noted earlier, Petitioner’s pending argument is not
based upon a contention that his conduct is no longer criminal as
a result of some change in the law made retroactive to cases on

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collateral review.

Parker has also not shown that he was unable

to present his claims in a successive § 2255 proceeding or that
they are based upon any newly discovered evidence.

Second,

challenges to career offender status are not properly raised
under § 2241. See Thomas v. Warden, Fort Dix, No. 17-2502, 2017
WL 2225574 *2 (D.N.J. May 19, 2017)
It has also been recognized by courts within this circuit
that Descamps does not apply retroactively to cases on collateral
review.

See

United States v. Nobles, 2015 WL 1208050 * 1

(E.D.

Pa. March 17, 2015); United States v. Wolf, Civil No. 1:CV-04347, 2014 WL 3339601 *2

(M.D. Pa. 2014)(Caldwell, J.).

Likewise, Mathis has not been found to apply retroactively to
cases on collateral review by the Supreme Court.

See United

States v. Villella, No. 16-544, 2017 WL 1519548 *6 (W.D. Pa.
April 27, 2017).
Clearly, Parker’s’ pending claim does 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.
Levan v. Sneizek, 325 Fed. Appx. 55, 57

See

(3d Cir. April 2009);

Jordan v. United States, Civil No. 3:CV-14-2048, 2014 WL 7212859
*1-2 (M.D. Pa. Dec. 17, 2014) (Munley, J) (since Descamps cannot
be retroactively applied, the Dorsainvil exception does not
apply); Wyatt v. Warden Fort Dix, No. 17-1335, 2017 WL 1367239 *2

7

(D.N.J. April 10, 2017)(Mathis based sentencing enhancement claim
not properly asserted under § 2241).
Since there is no basis for a determination that § 2255 is
inadequate or ineffective to test the legality of Petitioner’s
sentencing enhancement, his § 2241 petition will be dismissed for
lack of jurisdiction.

Of course, this dismissal has no effect on

Petitioner’s right to seek permission to pursue a successive §
2255 action.

An appropriate order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: JUNE 6, 2017

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