FRANKLIN v. FCI MCKEAN, WARDEN

Filing 13

MEMORANDUM that the Court will dismiss the petition for lack of jurisdiction. Signed by Judge Susan Paradise Baxter on 3/12/19. (jpe)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANTHONY MARCH FRANKLIN,
Petitioner,
v.
FCI MCKEAN, WARDEN,
Respondent.

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Civil Action No. 18-109 Erie

Judge Susan Paradise Baxter

MEMORANDUM
Pending before the Court1 is a petition for a writ of habeas corpus filed by federal prisoner
Anthony March Franklin ("Petitioner") pursuant to 28 U.S.C. § 2241. (ECF No. 4). He is challenging the
sentence imposed upon him by the United States District Court for the Eastern District of Michigan and
asks this Court to vacate it. For the reasons set forth below, the petition is dismissed for lack of
jurisdiction.
A.

Relevant Background
On 2011, pursuant to a plea agreement, Petitioner pleaded guilty to one count of distribution of

crack cocaine in violation of 21 U.S.C. § 841(a)(1). The United States District Court for the Eastern
District of Michigan (the "sentencing court") sentenced him as a career offender to 235 months in prison
pursuant to United States Sentencing Guideline § 4B1.1.
In 2013, Petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255, which the
sentencing court denied. Before he can file another § 2255 motion, he must receive authorization from
the United States Court of Appeals for the Sixth Circuit. This is in accordance with the 1996
amendments that the Antiterrorism and Effective Death Penalty Act ("AEDPA") made to § 2255, which
1

On September 14, 2018, the undersigned was sworn in as a United States District Judge. This action was reassigned
to this Court's docket on September 21, 2018.

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bar a federal prisoner from filing a second or successive § 2255 motion unless the appropriate court of
appeals first certifies the filing contains a claim based on either:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). See also 28 U.S.C. § 2244(a).
In 2017, Petitioner filed an application with the Sixth Circuit Court of Appeals to file a second or
successive § 2255 motion so that he could challenge his career offender designation under Mathis v.
United States, 136 S. Ct. 2243 (2016). It denied his application on December 12, 2017, explaining:
First, [Petitioner] concedes in his motion that his claim does not rely on "newly
discovered evidence." Second, his claim does not rely on a new, retroactive rule of
constitutional law. Because Mathis was dictated by years of Supreme Court precedent, it
is not "new" for the purposes of § 2255(h)(2). Moreover, the Supreme Court has not
specifically held that Mathis is retroactive. [Petitioner's] reliance on Mathis therefore
does not satisfy the requirements of § 2255(h).
12/12/17 Order in In re: Anthony March Franklin, No. 17-1761 (6th Cir. 2017) (internal citations
omitted) (available on PACER).
Petitioner is incarcerated at FCI McKean, which is located within the territorial boundaries of
this Court. In the petition for a writ of habeas corpus that he filed with this Court pursuant to 28 U.S.C.
§ 2241, he challenges his career offender sentence under Mathis and Descamps v. United States, 570
U.S. 254 (2013). (ECF No. 4). As relief, he seeks an order from this Court that vacates his sentence and
that remands his case to the sentencing court for resentencing. (Id. at 2). Respondent has filed his answer
(ECF No. 9), in which he contends that this Court must dismiss the petition for lack of jurisdiction, and
Petitioner has filed his reply (ECF No. 11).

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B.

Discussion
For federal prisoners, "[t]he 'core' habeas corpus action is a prisoner challenging the authority of

the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is
improper or invalid." McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010); see e.g., Cardona v.
Bledsoe, 681 F.3d 533, 535-38 (3d Cir. 2012). "Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer
federal jurisdiction over habeas petitions filed by federal inmates." Cardona, 681 F.3d at 535. Section
2255 motions must be filed in the federal district court that imposed the conviction and sentence the
prisoner is challenging. 28 U.SC. § 2255(a). In contrast, a habeas corpus action pursuant to § 2241 must
be brought in the custodial court (the federal district court in the district the prisoner is incarcerated).
Bruce v. Warden Lewisburg USP, 868 F.3d 170, 178 (3d Cir. 2017).2
Importantly, "[m]otions pursuant to 28 U.S.C. § 2255 are the presumptive means by which
federal prisoners challenge their convictions or sentences that are allegedly in violation of the
Constitution." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). As the United States Court of
Appeals for the Third Circuit explained in Bruce v. Warden Lewisburg USP, 868 F.3d 170 (3d Cir.
2017), prior to § 2255's enactment, federal prisoners seeking habeas relief could only do so by filing a
petition under § 2241 in the federal district court in the district the prisoner was incarcerated. 868 F.3d at

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Section 2241 petitions must be filed in the federal district court in the district the prisoner is incarcerated because:
[t]he prisoner must direct his [§ 2241] petition to "the person who has custody over him." § 2242; see also
Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Braden v. 30th Judicial Circuit
Court of Ky., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Longstanding practice under
this immediate custodian rule 'confirms that in habeas challenges to present physical confinement...the
default rule is that the proper respondent is the warden of the facility where the prisoner is being held."
Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). And under the statute's
jurisdiction of confinement rule, district courts may only grant habeas relief against custodians "within their
respective jurisdictions." § 2241(a); see also Braden, 410 U.S. at 495, 93 S.Ct. 1123 ("[T]he language of
§ 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian.").

Bruce, 868 F.3d at 178.

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178. "An increase in the number of federal habeas petitions produced serious administrative problems
and overburdened the few district courts in the jurisdictions with major federal prisons." Id. (citing
United States v. Hayman, 342 U.S. 205, 210-19 (1952)). To alleviate that burden, Congress in 1948
enacted § 2255:
A new remedial mechanism, § 2255 "replaced traditional habeas corpus for federal
prisoners (at least in the first instance) with a process that allowed the prisoner to file a
motion with the sentencing court on the ground that his sentence was, inter alia, imposed
in violation of the Constitution or laws of the United States." Boumediene v. Bush, 553
U.S. 723, 774, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (internal quotation marks omitted).
The statute's "sole purpose was to minimize the difficulties encountered in habeas corpus
hearings by affording the same rights in another and more convenient forum." Hayman,
342 U.S. at 219, 72 S.Ct. 263; see also Hill v. United States, 368 U.S. 424, 427, 428 n.5,
82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (describing the § 2255 remedy as "exactly
commensurate" with § 2241's writ of habeas corpus); United States v. Anselmi, 207 F.2d
312, 314 (3d Cir. 1953).
So it is that a federal prisoner's first (and most often only) route for collateral
review of his conviction or sentence is under § 2255.
Id. Therefore, federal prisoners incarcerated within the Third Circuit can challenge the validity of their
convictions in a § 2241 habeas petition only in the very limited circumstances discussed below.
28 U.S.C. § 2255(e); In re Dorsainvil, 119 F.3d 245, 248-52 (3d Cir. 1997); Bruce, 868 F.3d at 178-80.
The Third Circuit Court of Appeals has explained that "§ 2241 confers habeas jurisdiction to
hear the petition of a federal prisoner who is challenging not the validity but the execution of his
sentence." Cardona, 681 F.3d at 535 (internal quotations and citations omitted) (emphasis added);
Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005) (defining "execution of" the
sentence to mean "'put into effect' or carry out.'"). This means that a federal prisoner incarcerated within
the Third Circuit may litigate in a § 2241 habeas proceeding two types of claims.
The first type of claim is one that challenges conduct by the Federal Bureau of Prisons (the
"BOP") that affects the duration of the prisoner's custody. For example, a prisoner can challenge in a
§ 2241 habeas proceeding the manner in which the BOP is computing his federal sentence, see, e.g.,
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Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990), or the constitutionality of a BOP disciplinary
action that resulted in the loss of good conduct sentencing credits, see, e.g., Queen v. Miner, 530 F.3d
253, 254 n.2 (3d Cir. 2008). Petitioner did not raise this type of claim in his petition for a writ of habeas
corpus.
The second type of claim is one that challenges BOP conduct that the prisoner contends
"conflict[s] with express statements in the applicable sentencing judgment." Cardona, 681 F.3d at 536;
McGee, 627 F.3d at 935-37; Woodall, 432 F.3d at 243. The prisoner must "allege that [the] BOP's
conduct was somehow inconsistent with a command or recommendation in the sentencing judgment."
Cardona, 681 F.3d at 537; id. at 536 ("The petitions in Woodall and McGee both challenged BOP
conduct that conflicted with express statements in the applicable sentencing judgment. That is, both
petitions claimed that the BOP was not properly 'putting into effect' or 'carrying out' the directives of the
sentencing judgment.") (internal quotations, altered text, and citations omitted). Petitioner did not raise
this type of claim in his petition for a writ of habeas corpus.
Importantly, § 2255 expressly prohibits a court from entertaining a § 2241 petition filed by a
federal prisoner who is raising the types of claims that must be raised in a § 2255 motion unless it
"appears that the remedy by [§ 2255 motion] is inadequate or ineffective to test the legality of his
detention." 28 U.S.C. § 2255(e). This provision of § 2255 is commonly referred to as the "savings
clause." See, e.g., Bruce, 868 F.3d at 174, 178-79.
In its landmark decision In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the Third Circuit Court of
Appeals recognized the one circumstance under which it has found § 2255's remedy to be inadequate of
ineffective since AEDPA amended § 2255 in 1996 to include a one-year statute of limitations and the
prohibition against the filing of second or successive motions. The petitioner in Dorsainvil, Ocsulis
Dorsainvil, was convicted, inter alia, of using a gun in connection with a drug crime under 18 U.S.C.
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§ 924(c)(1). He was so convicted notwithstanding that he did not "use" the gun but the gun was merely
present in the car from which the drugs were to be bought. After he had exhausted his appeals and
litigated his first § 2255 motion, the Supreme Court in Bailey v. United States, 516 U.S. 137 (1995)
construed the criminal statute under which Dorsainvil was convicted (18 U.S.C. § 924(c)(1)) to exclude
from the ambit of the statute mere presence of a gun at a drug crime, thus arguably rendering him
actually innocent of the crime of using a gun in connection with a drug offense.
After the Supreme Court issued Bailey, Dorsainvil applied to the court of appeals for
authorization to file in the district court a second or successive § 2255 motion. The court had no choice
but to deny his request because he could not satisfy AEDPA's gatekeeping requirements for the filing of
a second or successive § 2255 motion. That was because the decision in Bailey was one of statutory
construction and, therefore, did not constitute "a new rule of constitutional law…that was previously
unavailable[.]"3 Dorsainvil, 119 F.3d at 247-48 (quoting 28 U.S.C. § 2255 (now at § 2255(h)). Under
these circumstances, the court of appeals determined that Dorsainvil had established that § 2255 was
"inadequate or ineffective" to test the legality of his detention and, as a result, he could bring his claim in
a § 2241 habeas corpus petition:
A similar case "involv[ing] the availability of collateral relief from a federal criminal
conviction based upon an intervening change in substantive law" came before the
Supreme Court in Davis v. United States, 417 U.S. 333, 334 (1974). In that case, the
Court stated that a Supreme Court decision interpreting a criminal statute that resulted in
the imprisonment of one whose conduct was not prohibited by law "presents exceptional
circumstances where the need for the remedy afforded by the writ of habeas corpus is
apparent." Id. at 346 (internal quotations omitted). The Court held that "if [petitioner's]
contention is well taken, then [his] conviction and punishment are for an act that the law
does not make criminal. There can be no room for doubt that such a circumstance
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Whether Bailey could be applied "retroactively" to Dorsainvil was not an issue because it was a case of statutory
construction. Bousley v. United States, 523 U.S. 614, 620-21 (1998). See also Rivers v. Roadway Express, Inc., 511 U.S.
298, 312-13 (1994) ("A judicial construction of a statute is an authoritative statement of what the statute meant before as well
as after the decision of the case giving rise to that construction.") The issue in Dorsainvil was what mechanism (a § 2255
motion or a § 2241 habeas petition) he could use, if any, to have his claim under Bailey heard by a court.

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inherently results in a complete miscarriage of justice and present(s) exceptional
circumstances that justify collateral relief under § 2255." Id. at 346-47 (internal
quotations omitted); see also United States v. Addonizio, 442 U.S. 178, 186-87, (1979)
(discussing Davis and observing that a refusal to have vacated his sentence "would surely
have been a 'complete miscarriage of justice,' since the conviction and sentence were no
longer lawful").
The decision in Davis that § 2255 was broad enough to cover a defendant
imprisoned for a crime that an intervening decision negates does not govern Dorsainvil's
motion before us only because he has brought his claim for relief on a second § 2255
motion [subject to the gatekeeping provisions of AEDPA]. In the earlier part of this
opinion, we construed the AEDPA to preclude our certification of a second § 2255
motion that relied on the intervening decision in Bailey as a basis for certification. Thus,
Dorsainvil does not have and, because of the circumstance that he was convicted for a
violation of § 924(c)(1) before the Bailey decision, never had an opportunity to challenge
his conviction as inconsistent with the Supreme Court's interpretation of § 924(c)(1). If,
as the Supreme Court stated in Davis, it is a "complete miscarriage of justice" to punish a
defendant for an act that the law does not make criminal, thereby warranting resort to the
collateral remedy afforded by § 2255, it must follow that it is the same "complete
miscarriage of justice" when the AEDPA amendment to § 2255 makes that collateral
remedy unavailable. In that unusual circumstance, the remedy afforded by § 2255 is
"inadequate or ineffective to test the legality of [Dorsainvil's] detention."
There is no reason why § 2241 would not be available under these circumstances,
provided of course that Dorsainvil could make the showing necessary to invoke habeas
relief, an issue for the district court.
Id. at 250-51 (emphasis added).
In its recent decision in Bruce, the Third Circuit Court of Appeals set forth the two conditions
that a federal prisoner confined within the Third Circuit must satisfy post-Dorsainvil in order to have his
case fall within § 2255's savings clause. "First, a prisoner must assert a 'claim of 'actual innocence' on
the theory that 'he is being detained for conduct that has subsequently been rendered non-criminal by an
intervening Supreme Court decision' and our own precedent construing an intervening Supreme Court
decision'–in other words, when there is a change in statutory caselaw that applies retroactively in cases
on collateral review." Bruce, 868 F.3d at 180 (emphasis added) (quoting United States v. Tyler, 732
F.3d 241, 246 (3d Cir. 2013), which quoted Dorsainvil, 119 F.3d at 252). "[S]econd, the prisoner must
be 'otherwise barred from challenging the legality of the conviction under § 2255.'" Id. (quoting Tyler,
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732 F.3d at 246). "Stated differently, the prisoner has 'had no earlier opportunity to challenge his
conviction for a crime that an intervening change in substantive law may negate.'" Id. (quoting
Dorsainvil, 119 F.3d at 251) (emphasis added).
Petitioner cannot satisfy these conditions because, unlike the petitioners in Bruce and in
Dorsainvil, he is not asserting that he is being detained for conduct that has subsequently been rendered
non-criminal by intervening precedential caselaw interpreting the statute under which he was convicted.
Therefore, the Court must dismiss his petition for lack of jurisidiction. The fact that Petitioner has not, or
cannot, receive authorization to file a successive § 2255 motion is not, in and of itself, a sufficient
ground to render § 2255 "inadequate or ineffective." Dorsainvil, 119 F.3d at 251 ("We do not suggest
that § 2255 would be 'inadequate or ineffective' so as to enable a second petitioner to invoke § 2241
merely because that petitioner is unable to meet the stringent gatekeeping requirements of [AEDPA's
amendments to] § 2255. Such a holding would effectively eviscerate Congress's intent in amending
§ 2255."); Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam) ("Section
2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the oneyear statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping
requirements of the amended § 2255."); Gardner v. Warden Lewisburg USP, 845 F.3d 99, 103 (3d Cir.
2017) ("Adopting [the petitioner's] approach–under which all sentencing issues based on new Supreme
Court decisions could be raised via § 2241 petitions–would [short-circuit § 2255's gatekeeping
requirements]. The exception would swallow the rule that habeas claims presumptively must be brought
in § 2255 motions.")
Finally, the Court notes that the courts of appeals are split on the application of the savings
clause. Bruce, 868 F.3d at 179-82; id. at 180. And, even among those courts of appeals that permit
prisoners incarcerated within their circuits to bring statutory-interpretation based actual innocence
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claims via a § 2241 petition (by way of § 2255's savings clause) (such as the Third Circuit Court of
Appeals), there is a split regarding whether in some limited circumstances the savings clause should
apply to statutory-interpretation based sentencing claims, or only to claims that challenge the underlying
conviction. The Third Circuit Court of Appeals has thus far declined to extend § 2255's savings clause to
circumstances in which the petitioner is challenging his sentence, as opposed to arguing that he is
actually innocent of the crime for which he was convicted. Gardner, 845 F.3d at 103 (petitioner could
not challenge his sentence based upon Alleyne v. United States, 570 U.S. 99 (2013) in a § 2241 habeas
petition and rejecting the petitioner's argument that "if Congress had intended to limit § 2255's savings
clause only to 'actual innocence' claims, the legislature would have drafted the statute differently.");
Okereke, 307 F.3d at 120-21 (Dorsainvil's interpretation of § 2255 provides only a narrow exception to
its presumptive exclusivity, and holding that the petitioner could not challenge his sentence under
Apprendi v. New Jersey, 530 U.S. 466 (2000) in a § 2241 habeas petition); Murray v. Warden Fairton
FCI, 710 F. App'x 518, 520 (3d Cir. 2018) ("We conclude that the District Court properly rejected the
petition as it related to [the petitioner's] 'Mathis' claim, too. We have not held that innocence-of-sentence
claims fall within the exception to the rule that habeas claims must be brought in § 2255 motions."), cert.
denied sub nom. 138 S.Ct. 2007 (2018); Smith v. Warden Lewisburg USP, 614 F. App'x 52, 55 (3d Cir.
2015) ("Descamps does not constitute the rare situation of an intervening change of the law sufficient to
apply the 'safety valve' provided by § 2241.").
The result of all of this is that, at the present time and as the Third Circuit Court of Appeals
recognized in Bruce, similarly-situated federal prisoners may receive different treatment by
happenstance of the circuit in which they find themselves to be incarcerated. 868 F.3d at 180-81. As the
court of appeals explained, "by enacting § 2255 Congress sought to alleviate the inefficiencies that
attend § 2241's immediate custodian and district of confinement rules. Now those difficulties have
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returned, though in a new form. And so they will remain, at least until Congress or the Supreme Court
speaks on the matter." Id. at 181 (emphasis added).4
C.

Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is dismissed for lack of

jurisdiction.5 An appropriate Order follows.

Dated: March 12, 2019

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States District Judge

4

Recently, in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the Fourth Circuit Court of Appeals held that
"2255(e) must provide an avenue for prisoners to test the legality of their sentences pursuant to § 2241," id. at 428, and it set
forth four factors that must be met in order for a court within its circuit to find that § 2255 is inadequate and ineffective to test
the legality of a sentence. Id. at 429. The Solicitor General, on behalf of the United States, filed a petition for a writ of
certiorari, which is pending before the Supreme Court of the United States. In the petition, the Solicitor General wrote that
"[t]he government recognizes that adherence to the statutory text [of § 2255(h)] may lead to harsh results in some cases[,]"
and explained that "[t]he Department of Justice is working on efforts to introduce legislation that would enable some
prisoners to benefit from the later-issued, non-constitutional rules announced by [the Supreme] Court. Petition For a Writ of
Certiorari at 22-23, United States v. Wheeler, No. 18-420 (Oct. 3, 2018).
5

28 U.S.C. § 2253 sets forth the 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 dismissal of a § 2241 habeas corpus
proceeding are not governed by the certificate of appealability requirement. United States v. Cepero, 224 F.3d 256, 264-65
(3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012).

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