MCBRIDE v. UNITED STATES OF AMERICA

Filing 1

OPINION and ORDER DENYING Motion to Vacate/Set Aside/Correct Sentence (2255) filed by DAWAN RASHEED MCBRIDE. Signed by Judge Maurice B. Cohill on 2/22/2012. (sjs)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAWAN RASHEED MCBRIDE,

VS.

UNITED STATES OF AMERICA

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12-cv-198
08-cr-308

OPINION
Pending before this Court is Petitioner Dawan McBride's "Memorandum of Law
Brief in Support of Petition to Vacate Judgment in the Nature of Tenth Amendment
Pursuant to U.S. Const. Art. 111" [ECF #1 of 12-cv-198; ECF # 68 of 08-cr-308]
("Motion").
Petitioner raises two arguments in his Motion. First, he argues that pursuant to
Bond v. United States, 131 S.Ct. 2355 (2011), decided on June 16, 2011, he has
standing to argue that 18 U.S.C. § 924(e), the armed career criminal sentencing
enhancement provision which we held to be applicable to Petitioner at his sentencing
hearing, violates the 10th Amendment to the United Constitution and therefore, the
judgment against him must be vacated. See Motion, pp. 3-6. In Bond, the Supreme
Court reversed the decision of the Third Circuit court, which had determined that only
the state itself could argue that a federal statute violated the 10th Amendment; the
Supreme Court held that individuals have standing to challenge federal statutes on 10th
Amendment grounds when they are directly affected by the statute. Bond, 131 S.Ct. at
2363-64 (,'The individual, in a proper case, can assert injury from governmental action

taken in excess of the authority that federalism defines. Her rights in this regard do not
belong to a State.").
Second, Petitioner argues that we erred at his sentencing hearing when we
concluded that his prior Pennsylvania state court conviction for possession with intent to
distribute crack cocaine (Criminal Case Number 199714783) qualified as a "serious
drug offense" for purposes of determining whether § 924(e) applied to Petitioner. This is
not the first time Petitioner has argued that we erred in holding that § 924(e) applied to
him. Petitioner made the same contention at his sentencing hearing and in a prior
§ 2255 Motion which he filed on April 14, 2011 and we denied on October 6,2012. See
April 21, 2009 Transcript, pp. 15-20; Opinion dated October 6, 2011, p. 10 ("Petitioner's
sole argument in the §2255 Motion is that the Court erred when it sentenced him as an
armed career criminal under the Armed Career Criminal Act ('ACCA'), 18 U.S.C.
§ 924(e) [based upon his Pennsylvania state court convictions at criminal case numbers
200105827,200300657, and 199714783] and it should modify his sentence
accordingly:").
We read Petitioner's Motion to be a motion to vacate, set aside or correct
Petitioner's sentence pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255 (a) ("A
prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence 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 sentence was in excess of the maximum authorized
by law, or is othelWise subject to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the sentence."); Okereke v. United States,

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307 F.3d 117, 120 (3d Cir. 2002) (citation omitted) ("Motions pursuant to 28 U.S.C. §
2255 are the presumptive means by which federal prisoners can challenge their
convictions or sentences that are allegedly in violation of the Constitution."). As stated
above, this is not Petitioner's first Motion to Vacate, Set Aside or Correct the Sentence
pursuant to 28 U.S.C. § 2255. Therefore, this Motion is subject to the requirement of 28
U.S.C. § 2255(h) which provides:
(h) A second or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain-­

(1) newly discovered evidence that, if proven and viewed in lig ht 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 previolJsly unavailable.

lQ. Accordingly, because Petitioner's Motion is a second or successive § 2255 motion
that has not been certified, it must be denied.
We also note that even if Petitioner intended his Motion to be a Petition for
Habeas Corpus pursuant to 28 U.S.C. § 2241,1 Petitioner's Motion still must be denied
because pursuant to 28 U.S.C. § 2255(e),2 a habeas petitioner may seek relief under
§2241 only if it is established that the remedy provided by § 2255 is "inadequate or

128 U.S.C. § 2241( c) (3) provides: "The writ of habeas corpus shall not extend to a prisoner unless ... (3) [h]e is in
custody in violation of the Constitution or laws or treaties of the United States."
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2 28 U.S.C. § 2255(e) provides that­
"[a]n application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of his detention."

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ineffective" to test the legality of his detention and we find that Petitioner has not shown
that § 2255 provides an inadequate or ineffective remedy. In re Dorsainvil, 119 F.3d
245,249-50 (3d Cir. 1997). In particular, while Petitioner seems to be arguing that the
Bond decision provides him with a new basis for challenging the legality of his
incarceration, in fact, Petitioner could have raised that argument in his first § 2255
Motion since Bond was decided on June 16,2011 and Petitioner had asked for, and
been granted, permission by this Court to amend his § 2255 Motion, originally filed on
April 14, 2011, up until September 6,2011. See ECF ## 61,63 and 64 of CR08-308;
ECF #1 of CV11-494. Further, with respect to Petitioner's argument that we erred at his
sentencing hearing when we concluded that his prior Pennsylvania state court
conviction for possession with intent to distribute crack cocaine (Criminal Case Number
199714783) qualified as a "serious drug offense" for purposes of determining whether §
924(e) applied to him, again, this argument has already been addressed by this Court
and found to be incorrect.
Accordingly, the following Order is therefore entered:
AND NOW, this

J.,.

~ol

day of February, 2012, it is hereby ORDERED,

ADJUDGED, AND DECREED that Petitioner Dawan McBride's "Memorandum of Law
Brief in Support of Petition to Vacate Judgment in the Nature of Tenth Amendment
Pursuant to U.S. Const. Art. III" [ECF #1] is DENIED.

U(4I .u.c ~.~~
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Maurice B. Cohill, Jr.
Senior District Court Judge

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