Vazquez v. Ormond

Filing 5

MEMORANDUM OPINION and ORDER- It is hereby ORDERED that this petition is DISMISSED WITHOUT PREJUDICE to petitioner's right to move a panel of the United States Court of Appeals for the Third Circuit for an order authorizing the sentencing court to consider his § 2255 motion (Please See Order for Details). Signed by District Judge Leonie M. Brinkema on 3/12/2018. (c/s to deft)(lcre, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Anthony E. Vazquez,
Petitioner,
I:18cvl44 (LMB/JFA)

V.

J. Ray Ormond,
Respondent.
MEMORANDUM OPINION AND ORDER

Anthony E. Vazquez, (Vazquez or petitioner), I a federal inmate proceeding pro

has filed

a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging the "validity of
[his] conviction or sentence as imposed" by the United States District Court for the Eastern District

of Pennsylvania. Petitioner's previous collateral challenge to his sentence in the United States
District Court for the Eastern District of Pennsylvania was dismissed, and his appeals to the United
States Court of Appeals for the Third Circuit and the United States Supreme Court were
unsuccessful. S^ Pet. at 2-3. Petitioner argues that he may collaterally attack his conviction and
sentence in a § 2241 petition because relief under § 2255 is inadequate or ineffective to test the
legality of his detention. S^ In re Jones. 226 F.3d 328, 333 (4th Cir. 2000). Petitioner has

submitted the filing fee required by 28 U.S.C. § 1914(a).

For the reasons that follow, the petition

must be construed as an unauthorized effort to file a successive motion to vacate pursuant to 28
U.S.C. § 2255. For this reason, it will be dismissed without prejudice.
I.

Petitioner states that he is presently incarcerated in this district pursuant to a conviction

' Technically one applies for a writ of habeas corpus; however, because the standardized form
used treats § 2241 proceedings as petitions, the court will characterize Vazquezas a petitioner.

entered in the United States District Court for the Eastern District of Pennsylvania, as a result of

his pleading guilty on March 24,2008, to being a felon in possession ofa firearm in violation of 18
U.S.C. § 922(g)(1).

United States v. Vazquez. No. 2:07-cr-00423-JS-i (E.D. Pa. July 24,

2007). Because his criminal history qualified him for "enhanced penalties" under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), on November 25,2008, petitioner received a
sentencing enhancement that "raised his sentencing exposure fi-om zero to ten years imprisonment
to fifteen years to life imprisonment," and he was sentenced to 198 months imprisonment. Dkt.
No. 1-4 at 1.

Petitioner admits that the United States Court of Appeals for the Third Circuit affirmed his
conviction and sentence on May 25,2010, United States v. Vazquez. No. 08-4696, 381 F. App'x
168 (3d Cir. May 25,2010), the United States Supreme Court denied certiorari review on February
22,2011, Vazquez v. United States. No. 10-6117, 562 U.S. 1222 (2011), and that his timely
motion to vacate, pursuant to 28 U.S.C. § 2255, was dismissed on February 7, 2013.

On January 30,2018, petitioner filed the instant petition alleging that his "December 12,

2001 conviction for Possessing with Intent to Deliver a 'Controlled Substance' (CP # 0007 1123
1/1)" may no longer be considered a "serious drug offense" that can be used to enhance his
sentence under the ACCA. Dkt. No. 1-4 at 4. Specifically, petitioner argues that under the

"modified categorical approach" advanced in Descamps v. United States. 133 S. Ct. 2276,
2281-85 (2013), and further clarified to require that any alternative elements of a crime increasing

a defendant's exposure be proven beyond a reasonable doubt, his "December 12, 2001 conviction
for Possessing with Intent to Deliver a 'Controlled Substance' (CP # 0007 1123 1/1)" may no

longer be considered a "serious drug offense" that can be used to enhance his sentence under the
ACCA.

Dkt. No. 1-4 at 4.
2

Petitioner contends that the "savings clause" of 28 U.S.C. § 2255(e) applies to his

conviction and he should be permitted to file his action under 28 U.S.C. § 2241. Specifically, he
argues that "from 2006 to 2014 the Third Circuit consistently held that Pennsylvania's drug Statute

was only divisible by conduct, not by drug type," but after his direct appeal and section 2255
motion, "the Third Circuit reassessed the Pennsylvania statute underlying [his] previous
convictions" and "determined that the statute was also divisible by drug type." Dkt. No. 1-4 at
6-7. According to petitioner, a prior state conviction may be used to enhance a sentence under the
ACCA only "if it involves a controlled substance 'as defined in section 102 of the Controlled

Substances Act (21 U.S.C. 802)' and 'for which a maximum term of imprisonment of ten years or
more is prescribed by law.'" Dkt. No. 1-4 at 9. Based on the foregoing, petitioner argues that

"his prior convictions are no longer valid ACCA predicates ... because Pennsylvania's 'delivery'
element encompasses a broader range of conduct than the ACCA's 'distribution' element." Dkt.
No. 1-4 at 9. In petitioner's view, if the sentencing court had "applied the modified categorical

approach, it would have been unable to use Mr. Vazquez's 2001 conviction as an ACCA predicate
because there are no ... records specifying the drug upon which his conviction rests." Dkt. No.
1-4 at 5,
IL

A motion pursuant to 28 U.S.C. § 2255 provides the primary means of collateral attack on
a federal conviction and sentence. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) ("[I]t is well

established that defendants convicted in federal court are obliged to seek habeas relief from their

convictions and sentences through § 2255."); however, the Antiterrorism and Effective Death
Penalty Act of 1996 restricted the jurisdiction of district courts to hear second or successive

applications for § 2255 federal habeas corpus relief by establishing a "gatekeeping mechanism."
3

Felker v. Turpin. 518 U.S. 651,657 (1996). Thus, "[b]efore a second or successive application

permitted by this section is filed in the district court, the applicant shall move in the appropriate

court of appeals for an order authorizing the district court to consider the application." 28 U.S.C.
§ 2244(b)(3)(A).

A federal inmate may proceed under 28 U.S.C. § 2241 instead of § 2255 only if the inmate
demonstrates that the remedy afforded by § 2255 "is inadequate or ineffective to test the legality of
his detention." 28 U.S.C. § 2255(e). For instance, "attacks on the execution of a sentence are

properly raised in a § 2241 petition." In re Vial, 115 F.3d 1192,1194 n.5 (4th Cir. 1997). The §
2255(e) exception is narrow; a federal inmate may proceed under § 2241 to challenge his
conviction or sentence "in only very limited circumstances." United States v. Poole. 531 F.3d
263,369 (4th Cir. 2008). Indeed, the Fourth Circuit has emphasized that "the remedy afforded by

§ 2255 is not rendered inadequate or ineffective merely because an individual has been unable to

obtain relief under that provision, or because an individual is procedurally barred from filing a §
2255 motion." Id (citations omitted).

The Fourth Circuit uses a conjunctive, three-part test to determine when "§ 2255 is
inadequate and ineffective" such that § 2241 may be utilized instead. In re Jones. 226 F.3d 328,

333 (4th Cir. 2000). Specifically, a petitioner may use § 2241 in lieu of § 2255 if:
(1) at the time of conviction, settled law of this circuit or the Supreme Court
established the legality of the conviction; (2) subsequent to the prisoner's direct
appeal and first § 2255 motion, the substantive law changed such that the conduct
of which the prisoner was convicted is deemed not to be criminal; and (3) the
prisoner cannot satisfy the gatekeeping provisions of § 2255 becausethe new rule is
not one of constitutional law.

Id The Fourth Circuit formulated this test expressly to provide a remedy for the "fundamental

defectpresented by a situation in whichan individual is incarcerated for conduct that is not

criminal but, through no fauh of his own, he has no source of redress." Id at 333 n.3.

Put simply, petitioner's claim is not cognizable under § 2241 because petitioner cannot
satisfy the second prong of the Jones criteria.
III.

Petitioner cannot satisfy the second Jones criterion, namely that "the substantive law
changed such that the conduct of which the prisoner was convicted is [no longer] deemed not to be

criminal[.]" Id at 333. In other words, petitionermust show that he is actually innocentof the
predicate offenses that triggered his sentencing enhancement. In this respect. Fourth Circuit
precedent teaches that the savings clause does not extend to claims of innocenceof a sentencing
factor.

Poole. 531 F.3d at 267 ("Fourth Circuit precedenthas likev^se not extended the reach

ofthe savings clause to those petitionerschallengingonly their sentence."). Indeed, as the Fourth

Circuit has stated, "[a]ctual innocence applies in the contextof habitual offenderprovisions only
where the challenge to eligibility stems from actual innocence of the predicate crimes, and not
from the legal classification of the predicate crimes." United States v. Pettiford. 612 F.3d 270,

284 (4th Cir. 2010). Here, petitioner cannot show that the substantive law changedsuch that his
predicate offenses—^which he does not specify—^were no longer deemed criminal; rather,
petitioner argues only that changes in the law have altered the classification of his December 12,
2001 conviction such that it may no longer be used to enhance his sentence under the ACCA. The

Fourth Circuit's Pettiford decision expressly forecloses such an argument.

612 F.3d at 284.

Thus, the instant § 2241 petition is properly construed as a successive § 2255 motion.
Because the instant petition is properly construed as a successive § 2255 motion, this matter
must be dismissed without prejudice because the "appropriate court of appeals" has not authorized
this successive motion.

28 U.S.C. § 2244(b)(3)(A).
5

For the foregoing reasons,

It is hereby ORDERED that this petition is DISMISSED WITHOUT PREJUDICE to

petitioner'srightto move a panel of the United States Courtof Appeals forthe ThirdCircuit for an
order authorizing the sentencing court to consider his § 2255 motion.

To appeal this decision petitionermust file a written notice ofappeal with the Clerk's office

within sixty(60) days of the date of this Order. A written notice of appeal is a short statement
statinga desireto appeal this Orderand noting the date of the Order petitioner wishes to appeal.
Petitioner need not explain the grounds for appeal until so directed by the court. Failure to timely

file a notice of appeal waives the right to appeal this decision. Petitioner mustalso request a
certificate of appealability from a circuitjustice orjudge. S^ 28 U.S.C. § 2253; Rule 22(b), Fed.
R. App. P. For the reasons stated above, this Court expressly declines to issue such a certificate.

The Clerk is directed to send a copy of this Order and a standard § 2244 form to petitioner
and to CLOSE this action.

•4^

Entered this 19-

day of

2018.

Alexandria, Virginia

/sf /.
Leonie M. Brinkema

United States District Judge