HOUGH v. HOLDER et al
Filing
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OPINION AND ORDER that 6 Petition for Writ of Habeas Corpus filed by DONOVAN HOUGH is DISMISSED for lack of subject matter jurisdiction. The Clerk of Courts is hereby directed to close this case. Signed by Judge Susan Paradise Baxter on 9/28/11. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONOVAN HOUGH,
Petitioner,
v.
FRANCISCO J. QUINTANA, et al.,
Respondent.
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Civil Action No. 1:09-132 Erie
Magistrate Judge Susan Paradise Baxter
OPINION AND ORDER1
Petitioner Donovan Hough is a federal inmate currently incarcerated at the Federal Correctional
Institution McKean, in Bradford, Pennsylvania. He has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. He challenges the 1991 judgment of sentence (Counts Seven, Eight, and
Nine) for firearms violations under 18 U.S.C. § 924(c), which he received in a criminal case that was
before the U.S. District Court for the Western District of New York. He claims that the judgment of
sentence is invalidated following two decisions subsequently issued by the U.S. Court of Appeals for the
Second Circuit, United States v. Whitley, 529 F.3d 150 (2d Cir. 2008) and United States v. Williams,
558 F.3d 166 (2d Cir. 2009).
For the reasons set forth below, the petition is dismissed for lack of subject matter jurisdiction.
I.
A.
Relevant Background
On June 14, 1991, following a jury verdict, the U.S. District Court for the Western District of
New York sentenced Petitioner to a total term of imprisonment of 480 months, to be followed by five
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In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a U.S.
Magistrate Judge conduct proceedings in this case, including entry of a final judgment.
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years of supervised release, for Intentionally and Unlawfully Engaging in a Continued Criminal
Enterprise, in violation of 21 U.S.C. § 848 (Count One); Conspiracy to Distribute Cocaine and
Marijuana, in violation of 21 U.S.C. § 846 (Count Two); two counts of Possession With Intent To
Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts Three and Five); two counts of
Possession With Intent To Distribute Marijuana, in violation of 21 U.S.C. § 841(a)(1) (Counts Four and
Six); four counts of Unlawfully Using or Carrying a Firearm in Relation to a Drug Trafficking Crime, in
violation of 18 U.S.C. § 924(c) & 2 (Counts Seven, Eight, Nine, and Ten); Evasion of Federal Income
Tax, in violation of 26 U.S.C. § 7201 (Count Eleven); and Structuring Transactions to Evade Reporting
Requirements, in violation of 31 U.S.C. § 5324(3) (Count Twelve).
Petitioner appealed his judgment of sentence. On April 9, 1992, the Second Circuit Court of
Appeals affirmed. Petitioner's writ of certiorari was denied by the Supreme Court in October 1992.
On July 29, 1992, Petitioner filed a Motion to Vacate, Set Aside, or Correct his sentence
pursuant to 28 U.S.C. § 2255. On September 27, 1993, the district court denied the motion. On October
27, 1993, Petitioner filed a Notice of Appeal, which was denied by the Second Circuit Court of Appeals
for failure to comply with the Civil Appeals Management Plan.
On March 5, 1997, Petitioner filed a second Motion to Vacate, Set Aside, or Correct his sentence
pursuant to 28 U.S.C. § 2255, arguing that: 1) his § 924 firearm convictions "should be vacated in light
of the Supreme Court's Decision in United States v. Bailey, 576 U.S. 137 (1995)"; 2) he should have
received a "downward departure at sentencing on the basis of civil forfeiture"; and 3) his § 846
conviction should "be vacated because of the Supreme Court decision in Rutledge v. United States," 517
U.S. 292 (1996). On February 26, 1998, the district court granted in part the Motion to Vacate.
Specifically, Counts Two and Ten were vacated along with the special assessments ordered on those
counts. The court determined that, because vacating the counts did not affect the length of Petitioner's
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sentence, resentencing was not necessary. Petitioner filed a notice of appeal, which the Second Circuit
Court of Appeals denied on May 30, 2000 because Petitioner had not made a "substantial showing of the
denial of a constitutional right."
On August 2, 2004, Petitioner filed a motion with the Second Circuit Court of Appeals for
permission to file a second or successive § 2255 motion. That motion was denied.
In the instant petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, Petitioner
challenges the judgment of sentence he received for firearms violations (Counts Seven, Eight, and
Nine). In their Answer (ECF No. 13), Respondents contend that the petition should be dismissed for
lack of subject matter jurisdiction.
B.
Discussion
1.
Claims Generally Cognizable In Federal Habeas Corpus Proceedings
28 U.S.C. § 2255 permits a federal prisoner to challenge his or her sentence "upon the ground
that [it] was imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentences was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255. Congress, by
enacting 28 U.S.C. § 2255, provided a specific avenue by which a defendant could attack his or her
federal conviction or sentence. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009); Cradle
v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam); Chambers v. Romine, 41
F.App'x. 525, 526 (3d Cir. 2002); Briggs v. Levi, 275 F.App'x 111, 112-13 (3d Cir. 2008) (per curiam);
Brown v. Mendez, 167 F.Supp.2d 723, 726 (M.D. Pa. 2001) ("As a general rule, a § 2255 motion
'supersedes habeas corpus and provides the exclusive remedy' to one in custody pursuant to a federal
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court conviction."), quoting Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972) (per curiam). In
contrast, "matters concerning the conditions of confinement or the execution of a sentence are within the
subject matter jurisdiction of the court presiding in the district in which a prisoner is incarcerated."
DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam), citing Lee v. United States, 501 F.2d
494, 500 (8th Cir. 1974). Such claims are properly brought in a petition for writ of habeas corpus under
28 U.S.C. § 2241. Cradle, 290 F.3d at 538-39; Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000).
A habeas corpus petition "is not an additional, alternative or supplemental remedy to 28 U.S.C. § 2255."
Myers v. Booker, No. 00-3232, 2000 WL 1595967, at *1 (10th Cir. Oct. 26, 2000).
Respondents correctly contend that this Court should dismiss the petition for want of subject
matter jurisdiction because Petitioner is not challenging the fact or duration of his confinement or the
execution of his sentence. Rather, he is challenging the validity of his convictions and sentences.
Accordingly, the issues raised in the instant petition are not within the jurisdiction of this Court.
2.
The Savings Clause of 28 U.S.C. § 2255
Section 2255 provides, in pertinent part:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to
apply for relief by motion pursuant to [§ 2255], shall not be entertained if it appears that
the applicant has failed to apply for relief by motion [to vacate sentence pursuant to
§ 2255], to the court which sentenced him, or that such court has denied him relief, unless
it appears that the remedy by motion is inadequate or ineffective to test the legality of his
detention.
28 U.S.C. § 2255(e) (emphasis added). The italicized portion of the statutory language is commonly
referred to as § 2255's "savings clause" or "safety valve."
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Petitioner does not articulate any persuasive reason to support a finding that this case falls within
§ 2255's "savings clause" or "safety valve." Importantly, "[a] section 2255 motion is not 'inadequate or
ineffective' merely because the petitioner cannot meet the stringent gatekeeping requirements of section
2255 [and file another post-conviction motion in the district court where he was convicted and
sentenced], Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002), or because the sentencing court
does not grant relief[.]" David v. Grondolsky, 305 F.App'x 854, 855-56 (3d Cir. 2009) (per curiam),
citing Cradle, 290 F.3d at 539. See, e.g., Young v. Yost, 363 F.App'x 166, 169 (3d Cir. 2010) (per
curiam) ("Section 2255 is not 'inadequate or ineffective' merely because the Fourth Circuit Court of
Appeals denied [the petitioner] permission to file a second or successive § 2255 motion raising his
present claim."). "Rather, the 'safety valve' provided under section 2255 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
law." Id. at 856 (emphasis added), citing Okereke, 307 F.3d at 120, which cited In re Dorsainvil, 119
F.3d 245, 251 (3d Cir. 1997). It is the inefficacy of the remedy under § 2255, not the personal inability
to use it, that is determinative, and a habeas corpus petition is not an additional, alternative or
supplemental remedy to 28 U.S.C. § 2255. Cradle, 290 F.3d at 538-39.
Here, Petitioner's situation is not the rare one rendering § 2255 inadequate or ineffective. He
relies on the Second Circuit Court of Appeal's decisions in Whitley and Williams. In Whitley, the
defendant was subject to a mandatory minimum sentence of 15 years under 18 U.S.C. § 924(e). 529
F.3d at 152. He also was subject to a mandatory consecutive sentence of 10 years pursuant to
§ 924(c)(1)(A). Id. The Second Circuit Court held that, read literally, the "except clause in
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§ 924(c)(1)(A)2 meant that he was subject only to the 15-year mandatory minimum of § 924(e), and that
the consecutive 10-year weapons sentence did not apply. Id. at 153. On November 15, 2010, the
Supreme Court in Abbott v. United States, — U.S. —, 131 S.Ct. 18, 23 n. 2, 26 (2010), abrogated the
Second Circuit Court of Appeal's interpretation of the "except clause." See United States v. Tejada, 631
F.3d 614, 618-20 (2d Cir. 2011) (acknowledging that Abbott abrogates Whitley). A few weeks later, the
Supreme Court vacated Williams and remanded the case for further consideration in light of Abbott. On
September 13, 2011, the Second Circuit Court of Appeal's affirmed Williams's conviction and
sentencing, holding: "The Supreme Court's decision in Abbott forecloses Williams's challenge to his
sentence pursuant to Section 924(c)(1)(A)(I)." United States v. Williams, No. 07-2436, 2011 WL
4035829, *2 (2nd Cir. Sept. 13, 2011), citing Tejada, 631 F.3d at 619. Therefore, Petitioner's reliance
upon Whitley and Williams is foreclosed by Abbott.
C.
Certificate of Appealability
28 U.S.C. § 2253 codified standards governing the issuance of a certificate of appealability for
appellate review of a district court's disposition of a habeas petition. Federal prisoner appeals from the
denial of a habeas corpus proceeding are not governed by the certificate of appealability requirement.
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18 U.S.C. § 924(c)(1)(A) states as follows:
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any
other provision of law, any person who, during and in relation to any crime of violence or drug trafficking
crime … for which the person may be prosecuted in a court of the United States, uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided
for such crime of violence or drug trafficking crime(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years;
and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
(Emphasis added).
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United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000); 28 U.S.C. § 2253(c)(1)(B). As such, this
Court makes no certificate of appealability determination in this matter.
II.
For the foregoing reasons, the petition for a writ of habeas corpus is dismissed. An appropriate
order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONOVAN HOUGH,
Petitioner,
v.
FRANCISCO J. QUINTANA, et al.,
Respondent.
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)
)
)
)
)
)
Civil Action No. 1:09-132 Erie
Magistrate Judge Susan Paradise Baxter
ORDER
AND NOW, this 28th day of September, 2011;
IT IS HEREBY ORDERED that the petition for a writ of habeas corpus is DISMISSED for lack
of subject matter jurisdiction. The Clerk of Courts is hereby directed to close this case.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
cc:
Notice by ECF to counsel of record and by U.S. Mail to:
Donovan Hough
04957-055
FCI McKean
Inmate Mail/Parcels
P.O. Box 8000
Bradford, PA 16701
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