IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
June 20, 2007
RICHARD VIEUX, PETITIONER,
WARDEN TROY WILLIAMSON, RESPONDENT.
The opinion of the court was delivered by: Judge Jones
Magistrate Judge Blewitt
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS
Pending before this Court is a Report (doc. 3), issued by Magistrate Judge Thomas M. Blewitt ("the Magistrate Judge" or "Magistrate Judge Blewitt") on April 16, 2007, which recommends that Petitioner Richard Vieux's ("Petitioner" or "Vieux") Petition for Writ of Habeas Corpus (doc. 1), filed on April 5, 2007, be dismissed for lack of jurisdiction. For the reasons to follow, we will adopt the learned Magistrate Judge's Report in its entirety and dismiss the Petition for lack of jurisdiction.
On April 5, 2007, Petitioner filed the instant habeas action, pursuant to 28 U.S.C. § 2241, in the United States District Court for the Middle District of Pennsylvania, naming as Respondent Troy Williamson ("Respondent" or "Williamson").*fn1 On April 16, 2007, Magistrate Judge Blewitt issued a Report (doc. 3) recommending that Petitioner's Petition for Writ of Habeas Corpus (doc. 1) be dismissed for lack of jurisdiction without directing service of it on Respondent. On May 2, 2007, Petitioner filed Objections to Magistrate Judge Blewitt's Report, along with his supporting brief. (Rec. Doc. 4). Thus, this matter is ripe for disposition.
STANDARD OF REVIEW
When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. §636(b)(1); Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
In his Report and Recommendation ("Report"), Magistrate Judge Blewitt summarizes the relevant factual background of the instant action based on his reading of the parties' submissions. (Rec. Doc. 3). Although we agree with the Magistrate Judge's factual summary, taken in large part from Petitioner's Memorandum of Law in support of the Petition for Writ of Habeas Corpus (doc. 2), we review briefly the most pertinent portions thereof.*fn2
As Petitioner notes, he was convicted on December 14, 1995, following a jury trial in the United States District Court for the Middle District of Florida, of the following offenses: conspiracy to commit carjacking, to use and carry a firearm during and in relation to a crime of violence, to obstruct commerce by robbery, to transport stolen goods in interstate commerce, and to possess with intent to distribute cocaine, (Count One); carjacking resulting in serious bodily injury, (Count Two); use of firearm during a crime of violence, (Count Three); possession of a firearm by a convicted felon, (Count Five, Ten and Twelve); carjacking resulting in death, (Count Six); obstruction of commerce by robbery, (Count Eight); use of a firearm during a crime of violence, (Count Nine); and possession with intent to distribute cocaine, (Count Eleven). (Rec. Doc. 2 at 3).
Petitioner states these offenses were in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §§ 1951(a), 2119, 922(g)(1), and 371. (Rec. Doc. 1 at 3). He also indicates that he was convicted of the above stated violations, and that at trial, the Government dismissed Count Eight (8). (Id. at 3). On March 8, 1996, Petitioner was sentenced on the stated offenses to life imprisonment plus forty-five (45) years. (Id.).
Petitioner appealed his conviction to the Court of Appeals for the Eleventh Circuit, and on April 7, 1998, Petitioner's appeal was denied and his conviction was affirmed. (Id. at 3).
On March 5, 1999, Petitioner filed his first motion with the sentencing court pursuant to 28 U.S.C. § 2255 ("§ 2255"), which raised various issues, but did not directly challenge, his carjacking convictions, at issue here.*fn3 (Rec. Doc. 2 at 4).
On August 5, 1999, the court denied Petitioner's first § 2255 motion. Petitioner then appealed the court's denial of his § 2255 motion, and it was construed as a motion for certificate of appealability ("COA"). Petitioner's COA was denied. (Id. at 4). Petitioner next filed a motion for rehearing with the appeals court, arguing that the District Court abused its discretion by not giving him the chance to amend his § 2255 motion, in which he would have challenged his carjacking convictions based upon Jones. On May 23, 2000, Petitioner's motion for rehearing was denied. Petitioner then filed a writ of certiorari with the United States Supreme Court, arguing that the District Court abused its discretion with respect to not giving Petitioner a chance to amend his § 2255 motion. On February 20, 2001, Petitioner states that certiorari was denied. (Id. at 6).
Next, Petitioner attempted to file another § 2255 motion with the sentencing District Court, arguing that it was the first time he challenged his carjacking convictions because he had not been allowed to amend his first § 2255 motion. On February 18, 2002, the District Court denied Petitioner's motion as a second or successive petition without authorization from the Eleventh Circuit to file such. Petitioner filed a Notice of Appeal with an application for COA with the Eleventh Circuit, which was denied on December 19, 2002. (Id. at 7). On January 5, 2003, Petitioner filed a motion to reconsider with the Eleventh Circuit, which was denied on February 12, 2003. On May 5, 2003, Petitioner filed a writ of certiorari with the United States Supreme Court, which was denied. In April 2005, Petitioner attempted to file another writ of certiorari with the United States Supreme Court, but was advised that said writ could not be reviewed. (Id. at 8).
Thus, on September 7, 2005, Petitioner filed a Motion for Relief of Judgment pursuant to Fed. R. Civ. P. 60(b)(6), which was denied on January 6, 2006. (Id. at 8-9). On January 23, 2006, Petitioner filed a Rule 60(b) Motion to Alter or Amend Judgment, which was denied on December 1, 2006 by the District Court. On March 6, 2006, Petitioner filed a Notice of Appeal and application for COA with the Eleventh Circuit. On September 21, 2006, the Eleventh Circuit dismissed Petitioner's appeal. (Id. at 9-10). Petitioner filed a Motion to Reconsider, which was denied on October 26, 2006. On November 18, 2006 Petitioner filed another writ of certiorari with the United States Supreme Court, and on January 8, 2007, certiorari was denied. (Id. at 11).
On April 4, 2007, Petitioner filed the instant Petition (doc. 1) with this Court. Petitioner's argument therein appears to be two-fold. First, Petitioner states that he has been convicted of, and sentenced for, crimes that he was not charged with, specifically, carjacking in violation of 18 U.S.C. §§ 2119(2) and 2119(3). Indeed, Petitioner claims that he was charged only with 18 U.S.C. § 2119(1), and that, in light of Jones, his convictions on, and sentence based upon, the other § 2119 provisions are unlawful. Second, Petitioner contends that he cannot challenge the legality of his sentence in a § 2255 motion because he has diligently tried to raise his claims via § 2255, but to no avail.
Petitioner objects to the Magistrate Judge's recommendation that his Petition (doc. 1) be dismissed for lack of jurisdiction.*fn4 (Rec. Docs. 3-4). Petitioner further objects to the Magistrate Judge's recommendation that Petitioner's recourse is a § 2255 Motion. In our disposition of the instant Report, we are cognizant of both the Magistrate Judge's Report and Petitioner's Objections.
Upon our review of the Report (doc. 3), Petitioner's Objections (doc. 4) thereto, and the relevant law governing the instant action, we find Petitioner's Objections unavailing for several reasons. First, cognizant that in March 1999, the Supreme Court construed 18 U.S.C. § 2119 "as establishing three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict," Jones, 526 U.S. at 252, and even assuming arguendo that Jones somehow invalidates either Petitioner's convictions thereunder or his sentence therefor, § 2255 affords Petitioner the available avenue for relief. Indeed, § 2255 provides in relevant part:
An application for 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 legal of his detention.
28 U.S.C. § 2255 (emphasis added). Although we are cognizant that Petitioner has previously filed more than one motion pursuant to § 2255 and that they were denied, Petitioner himself has acknowledged that they did not address the instant issue of his carjacking convictions. Thus, § 2255's general rule applies to prevent our entertaining of the instant habeas action. Indeed, it is well-established that § 2255 "has made the sentencing court the exclusive forum for challenge to the validity of a conviction and sentence in first instance." Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971) (per curiam) (quoting U.S. ex rel. Leguillou v. Davis, 212 F.2d 681, 683, 684 (3d Cir. 1954); Mucherino v. Blackwell, 340 F.2d 94, 95 (1965); Frazier v. Blackwell, 325 F.2d 154, 155 (1963); Sims v. Willingham, 300 F.2d 162 (1962), cert. denied (1962)).
Second, although this is not Petitioner's first challenge to the validity of his conviction and sentence, any remedy § 2255 may afford remains available to Petitioner because he can request that the Eleventh Circuit certify a successive § 2255 motion,*fn5 and can raise the instant issue of his carjacking convictions in any such motion. Further, "a motion pursuant to § 2255 can be inadequate or ineffective to test the legality of detention only if it can be shown that some limitation of scope or procedure would prevent a § 2255 proceeding from affording the prisoner a full hearing and adjudication of his claim of wrongful detention." Galante, 437 F.2d at 1165 (emphasis added) (internal citations omitted). As denials of Petitioner's previous § 2255 motions are insufficient to show that § 2255 remedy is inadequate or ineffective, Petitioner can make no such showing here. Tripati v. Henman, 843 F. 2d 1160, 1162 (9th Cir. 1987), cert denied, 488 U.S. 983 (1988); Tracy v. Miner, 2007 WL 257618, at *5 (M.D. Pa. 2007); Litterio v. Parker, 369 F.2d 395, 396 (3d Cir. 1966) (per curiam).
Finally, we are conscious that as to issues cognizable by the sentencing court under § 2255, a motion under § 2255 "supersedes habeas corpus and provides the exclusive remedy." Tracy, 2007 WL 257618, at *5 (M.D. Pa. 2007) (citing Strollo v. Alldredge, 409 U.S. 1046 (1972)). In fact, the Third Circuit has concluded essentially the same: "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." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002), cert. denied, 537 U.S. 1038 (2002).
For all of the afore stated reasons, we will overrule Petitioner's Objections (doc. 4) to the Magistrate Judge's Report and adopt the Magistrate Judge's Report (doc. 3) recommending that the Petition (doc. 1) be dismissed for lack of jurisdiction, without directing service of it on Respondent.
An appropriate Order shall issue.