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Rosa v. Miner

November 7, 2006

OSVALDO ROSA, PETITIONER,
v.
JONATHAN MINER, WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Jones

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Osvaldo Rosa ("Petitioner" or "Rosa"), an inmate presently confined at the Allenwood United States Penitentiary, White Deer, Pennsylvania ("USP-Allenwood"), commenced the above-captioned action by filing a pro se Petition for Writ of Habeas Corpus (doc. 1) pursuant to the provisions of 28 U.S.C. § 2241. The required filing fee has been paid. (See Rec. Doc. 4). Named as Respondents are USP-Allenwood Warden Jonathan Miner and Attorney General Alberto Gonzalez.

Rosa was convicted of conspiracy to possess with intent to distribute and distribution of cocaine hydrochloride and conspiracy to import cocaine hydrochloride following a jury trial in the United States District Court for the Middle District of Florida. Thereafter, the Petitioner was sentenced to a five hundred and twelve (512) month term of imprisonment.

His conviction and sentence were affirmed on direct appeal to the United States Court of Appeals for the Eleventh Circuit. See United States v. Rosa, 239 F.3d 368 (11th Cir. 2000) (Table). Petitioner then collaterally challenged his conviction with a unsuccessful motion pursuant to 28 U.S.C. § 2255. On August 14, 2006, Rosa initiated a Petition for Writ of Habeas Corpus, which was dismissed by this Court on August 21, 2006. See Rosa v. Mendez, No. 4:CV-06-1578, slip op. (M.D. Pa. Aug. 21, 2006 ) (Jones, J.).

Rosa's instant Petition claims entitlement to federal habeas corpus relief on the grounds that: (1) his criminal sentence "is invalid because it failed to cite the statutory authority under Title 21 U.S.C. § 841(a)(1), (b)(1); Penalty Provision (b)(1)(A)(ii)" (doc. 1 at 9); and (2) his sentence violates the standards announced in Blakely v. Washington, 542 U.S. 296 (2004).*fn1 Petitioner also indicates that the instant Petition should be entertained because his § 2255 remedy is inadequate or ineffective. As relief, he asks to be released from confinement. For the reasons outlined herein, Rosa's Petition will be dismissed as a second or successive petition.

DISCUSSION

Habeas corpus petitions brought under § 2241 are subject to summary dismissal pursuant to Rule 4 ("Preliminary Consideration by the Judge") of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977) (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 face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." 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 determined from the petition itself . . . ." Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970), cert. denied, 400 U.S. 906 (1970). Accord Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991).

Prior to the 1996 amendments, 28 U.S.C. § 2244 authorized dismissal of a successive habeas petition "that presented no new ground not heretofore presented and determined." McCleskey v. Zant, 499 U.S. 467, 483 (1991). § 2244 provided:

(a) No circuit or district judge shall be required to entertain an application for writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for writ of habeas corpus and the petition presents no new ground not heretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry.

28 U.S.C. § 2244.

In McCleskey, the Supreme Court expanded § 2244 to also preclude a person from raising a new claim in a subsequent habeas petition that he could have raised in his first habeas petition:

A petitioner may abuse the writ by failing to raise a claim through inexcusable neglect. Our most recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure ...


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