Ashford v. Baltazar

Filing 7

MEMORANDUM OPINION (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 10/31/17. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JASON DEWAYNE ASHFORD,
Petitioner,
v.
WARDEN BALTAZAR.,
Respondent.

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No.: 4:17-CV-1517
(Judge Brann)

MEMORANDUM OPINION
OCTOBER 31, 2017
I.

BACKGROUND
Jason Dewayne Ashford, an inmate presently confined at the Canaan United

States Penitentiary Waymart, Pennsylvania (USP-Canaan), filed this pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner’s request to
proceed in forma pauperis will be granted for the purpose of the filing of this
action with this Court. Named as Respondent is Warden Baltazar of USP-Canaan.
Petitioner states that he was convicted of possession of a firearm by a
convicted felon in the United States District Court for the Northern District of
Florida. As a result of his conviction, Ashford was sentenced on March 16, 2004
to a two hundred and twenty (220) month term of imprisonment. Petitioner
indicates that he did not pursue either a direct appeal or seek relief via a motion
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under 28 U.S.C. § 2255.
Ashford’s pending action claims he is entitled to federal habeas corpus relief
under the grounds announced in Johnson v. United States, 576 U.S.___ , 135 S. Ct.
2551 (2015) and Welch v. United States, __ U.S. ___, 136 S. Ct. 1257, 1262,
(2016). Petitioner contends that he no longer has the necessary convictions on his
record to qualify for an Armed Career Criminal Act (ACCA) sentence
enhancement. He indicates that some of the predicate offenses relied upon for the
ACCA enhancement have been dismissed. As relief, he asks that his sentence be
corrected.
In Johnson, the United States Supreme Court held that the residual clause of
the ACCA sentence enhancement provision was unconstitutionally vague. See
United States v. Terry, No. 14-cv-1006, 2015 WL 4255527 (W. D. Pa. July 14,
2015). Welch recognized that Johnson is a new substantive rule of constitutional
law that is retroactively applicable in a collateral attack on a final conviction.
II.

DISCUSSION
Title 28 United States Code § 2241 vests the federal district courts with

jurisdiction to grant a writ of habeas corpus to persons in custody in violation of
the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). A
habeas corpus petition under § 2241 “allows a federal prisoner to challenge the

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‘execution’ of his sentence.” Woodall v. Federal Bureau of Prisons, 432 F.3d 235,
241 (3d Cir. 2005). Federal habeas corpus review may be employed by a prisoner
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.
1993). However, 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).
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 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

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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).
Since he initiated his action before this Court, Petitioner is apparently
arguing that he may bring his present claim via a federal habeas corpus petition. It
would appear that it is Ashford’s contention that this Court has jurisdiction over his
§ 2241 action by virtue of his ongoing detention at USP-Canaan.
When challenging the validity of a federal sentence and not its execution,1 a
federal prisoner is generally limited to seeking relief by way of a motion pursuant
to 28 U.S.C. § 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); Russell v.
Martinez, 325 Fed. Appx. 45, 47 (3d Cir. 2009)(“a section 2255 motion filed in the
sentencing 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, 325 Fed. Appx. at 47 (the safety valve “is
extremely narrow and has been held to apply in unusual situations, such as those in

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A federal prisoner may challenge the execution of his sentence by initiating an action pursuant
to § 2241. See Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).
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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.” Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002).
“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. 2009).
Petitioner is clearly challenging the validity of his 2004 ACCA enhanced
sentence which was imposed by the Northern District of Florida. Thus, he must do
so by following the requirements of § 2255. As previously noted, there is no
indication by Petitioner that he either filed a direct appeal or previously sought
relief via a § 2255 action. Ashford’s instant claims are not based upon a contention
that his conduct is no longer criminal as a result of some change in the law. Nor
has Petitioner shown that he is unable to present his claims via a § 2255
proceeding.
As recognized by the Honorable Kim R. Gibson in Pollard v. Yost, No. 07235, 2008 WL 4933599, at *6 (W.D. Pa. Nov. 18, 2008), for a challenge to a

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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.”
The United States Supreme Court in Welch held that Johnson is a new
substantive rule of constitutional law that is retroactively applicable in a collateral
attack on a final conviction. Based upon Petitioner’s representations, the
sentencing court has not been afforded opportunity to address the validity of his
pending Johnson based argument. This Court agrees with the approach taken by
Wood v. Maiorana, 2015 WL 4663267 *4 (M.D. Pa. Aug. 6, 2015) (Caputo, J.) and
Ruiz v. Ebbert, 2015 WL 5997105 (M.D. Pa. Oct. 14, 2015)(Conaboy, J.) which
recognized that since § 2255 plainly provides an avenue for litigating the merits of
a Johnson based sentencing claim, such an argument should be addressed by the
court which is ultimately the most appropriate forum, i.e. the sentencing court.
Given the recent decision of Welch regarding the retroactivity of Johnson, and the
fact that the Petitioner claims that he did not file a direct appeal or previously seek
relief under § 2255, this Court will likewise take the approach suggested by Wood.

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Pursuant to the above discussion this matter will be transferred to the
Northern District of Florida, the sentencing court. It is noted that transferring this
matter also protects the Petitioner’s rights as a pro se litigant as it precludes any
adverse consequences which might occur if this matter was simply dismissed
without prejudice.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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