Perry v. Warden, FCI Allenwood Low

Filing 3

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 11/30/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK PERRY,

:
:
Petitioner :
:
v.
:
:
WARDEN, FCI ALLENWOOD
:
LOW,
:
:
Respondent :

CIVIL NO. 3:17-cv-1682
(Judge Munley)

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MEMORANDUM
Presently before the court is a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 (Doc. 1), filed on September 18, 2017, by Frederick Perry (“Perry”), a
federal inmate confined at the Federal Correctional Institution at Allenwood, Low, White
Deer, Pennsylvania.
The Court has conducted preliminary review and, for the reasons set forth below,
will dismiss the petition for lack of jurisdiction. See R. GOVERNING § 2254 CASES R. 4,
1(b).1

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See R. GOVERNING § 2254 CASES R.4, which provides “[i]f 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.” These rules are applicable to petitions under 28
U.S.C. § 2241 in the discretion of the court. Id. at R.1(b).

I.

Background
The following is extracted from an opinion of the United States District Court for

the Northern District of Illinois:
By way of background, Defendant/Petitioner Frederick Perry was indicted
on one count of distributing 50 grams or more of mixtures containing
cocaine base in the form of crack cocaine in December 2006. On June 26,
2008, Perry entered a “blind” guilty plea to the charge before Judge
Hibbler, to whom this case was then assigned. Although Perry’s motion
refers to a plea agreement with the Government, Perry’s guilty plea was not
taken by the district court pursuant to a plea agreement. As is common in
the context of a “blind” plea, Perry filed a plea declaration. The plea
agreement attached to Perry’s motion as “App. A” appears to be a copy of
the draft plea agreement that the Government tendered to Perry’s counsel
during plea negotiations.
On February 26, 2009, the Court sentenced Perry to 226 months’
imprisonment and five years of supervised release. The district court
adopted the uncontested Presentence Investigation Report’s Guideline
calculations, under which Perry’s career offender advisory Guideline range
was 262 to 327 months. Perry did not appeal his conviction or sentence.
Rather, on November 5, 2012, he filed a motion to vacate, set aside, or
correct his sentence under 18 U.S.C. § 2255.
United States v. Perry, No. 12 C 8700, 2013 WL 1966637, at *1 (N.D. Ill. May 13,
2013). On May 13, 2013, the sentencing court denied Perry’s § 2255 motion as untimely.
Id.
On April 3, 2015, Perry filed a Motion for Sentence Reduction pursuant to 18
U.S.C. § 3582(c)(2) and Amendment 782. (Doc. 1-1, p. 3). The sentencing court denied
the motion on August 27, 2015. (Id.) The United States Court of Appeals for the
Seventh Circuit granted Perry authorization to file a successive § 2255 motion. (Id.) He

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filed his successive § 2255 on September 19, 2016. (Id.) It was denied on July 6, 2017.
(Id.)
Perry raises the following issue in the instant petition, “[w]hether in light of
Mathis v. United States, 136 S.Ct. 2243 (2016), United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016) and Holt v. United States, (No. 16-1793)(7th Cir. Dec. 13, 2016). Perry’s
prior convictions do not qualify him as a career offender requiring resentencing without
the career offender enhancement.” (Doc. 1-1, p. 2).
II.

Discussion
Challenges to the legality of federal convictions or sentences that are allegedly in

violation of the Constitution may generally be brought only in the district of sentencing
pursuant to 28 U.S.C. § 2255. Okereke v. United States, 307 F.3d 117 (3d Cir. 2002)
(citing Davis v. United States, 417 U.S. 333, 342 (1974)); see In re Dorsainvil, 119 F.3d
245 (3d Cir. 1997). A petitioner may only resort to a § 2241 petition in the unusual
situation where the remedy by motion under § 2255 would be inadequate or ineffective.
See 28 U.S.C. § 2255; see Dorsainvil, 119 F.3d at 251-52. Importantly, §2255 is not
“inadequate or ineffective” merely because the sentencing court has previously denied
relief. See id. at 251. Nor do legislative limitations, such as statutes of limitation or
gatekeeping provisions, placed on § 2255 proceedings render the remedy inadequate or
ineffective so as to authorize pursuit of a habeas corpus petition in this court. Cradle v.
United States, 290 F.3d 536, 539 (3d Cir. 2002); United States v. Brooks, 230 F.3d 643,
647 (3d Cir. 2000); Dorsainvil, 119 F.3d at 251.).
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The recognized exception to the general rule, that a challenge to a conviction or
sentence must be brought under 28 U.S.C. § 2255 in the sentencing court, is “where the
petitioner was in the ‘unusual position’ of a prisoner with no prior opportunity to
challenge his conviction for a crime that an intervening change in substantive law could
negate with retroactive application.” Okereke v. U.S., 307 F.3d 117, 120 (3d Cir. 2002)
(quoting In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)). Perry’s 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. Instead, he challenges the basis for his sentence
enhancement under the Armed Career Criminal Act, pursuant to Mathis, 136 S.Ct. 2243.
The Third Circuit Court of Appeals has not extended the limited Dorsainvil exception to
include situations where a prisoner is challenging a sentence enhancement based on an
intervening change in substantive law. Okereke, 307 F.3d at 120 (refusing to extend
Dorsainvil exception to sentencing challenge under Apprendi). The remedy afforded
under §2241 is not an additional, alternative, or supplemental remedy to that prescribed
under §2255 and Perry fails to demonstrate that he falls within the Dorsainvil exception.
Moreover, it appears that Perry may still have an avenue of relief open to him. In
his most recent successive Section 2255 motion, the sentencing court noted the
following:
Under the guise of submitting “additional new authority” for his Section
2255 motion, Petitioner filed a brief raising new arguments that his
predicate offenses should not have qualified under the career offender
guideline pursuant to application of Mathis v. United States, 136 S.Ct. 2243
(2016), United States v. Holt, 843 F.3d 720 (7th Cir. 2016), and United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). Unlike his successive
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petition’s constitutional arguments based on purported application of the
residual clause [3, at 3–4], Petitioner concedes that his new arguments are
statutory and are based on application of the categorical or modified
categorical approach to his two predicate offenses. [13, at 2 (“[T]he
argument being made here is statutory rather than constitutional and does
not rest on any other retroactive rule of constitutional law”).] These
arguments do not overlap with Petitioner’s original Beckles claim and
cannot form a basis for relief through the original Section 2255 motion that
Petitioner received permission to file from the Seventh Circuit. Petitioner
must secure permission from the Seventh Circuit to file a successive
Section 2255 application on these new grounds (if possible) or show that he
can avail himself of 28 U.S.C. § 2241. See In re Davenport, 147 F.3d 605,
608–10 (7th Cir. 1998); Dawkins v. United States, 829 F.3d 549, 551 (7th
Cir. 2016). The Court expresses no view on whether such an application
would be timely.
United States v. Perry, No. 12 C 8700, 2013 WL 1966637, at *1 (N.D. Ill. May 13,
2013). Perry certainly has the option to seek permission to present this issue in a
successive Section 2255 from the Seventh Circuit.
If a petitioner improperly challenges a federal conviction or sentence under §
2241, as is the case here, the petition must be dismissed for lack of jurisdiction.
Application of Galante, 437 F.2d 1154, 1165 (3d Cir. 1971). The dismissal is without
prejudice to Perry to seek permission from the Seventh Circuit to file a successive
Section 2255 application on these new grounds.
The Court will enter an appropriate Order.
BY THE COURT:
s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
Dated: November 30, 2017
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