The opinion of the court was delivered by: Judge Muir
(Petition Filed 12/26/2006)
Petitioner, Christopher Green, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, ("USPLewisburg"), filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges a conviction and sentence imposed by the United States District Court for the Southern District of Georgia. Specifically, Green seeks to be re-sentenced on his federal sentence, after successfully challenging two state court sentences that were used to enhance his federal sentence. A response (Doc. No. 6) and traverse (Doc. Nos. 8-10), having been filed, the petition is ripe for disposition. For the reasons set forth below, the Court will transfer the petition to the United States District Court for the Southern District of Georgia.
On April 18, 1997, petitioner and twenty-three co-defendants were indicted by a Grand Jury. Green was charged in Count One (1) of the indictment with conspiracy to possess with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 846, and in Counts fourteen (14) and fifteen (15) with willfully and unlawfully possessing with intent to distribute crack (cocaine base), in violation of 21 U.S.C. § 841(a). U.S. v. Baisden et al., Criminal Action NO. 5:97-CR-00003 (S.D. Georgia (Waycross Division))(Doc. No. 6-2, Ex. 1, docket sheet).
On October 21, 1997, after a jury trial, a guilty verdict was returned against Green, as to counts 1, 14 and 15. Id. On December 23, 1997, Green was sentenced to life imprisonment on counts 1 and 15, and 360 months on Count 14 to be served concurrently, and assessed $300.00. Id. He was ordered ineligible for all federal benefits permanently. Id.
On December 31, 1997, petitioner filed an appeal with the United States Court of Appeals for the Eleventh Circuit. Id. On August 17, 1999, Green's conviction was affirmed by the United States Court of Appeals for the Eleventh Circuit. See United States v. Baisden, No. 98-8010-AA, (11th Cir. 1999)(Doc. No. 6-2, Ex. 2, docket sheet). Following a denial of the petition for rehearing of defendants other than Green, the appeal was closed and a mandate was issued on December 14, 1999. Id. No petition for certiorari to the United States Supreme Court was filed.
On August 28, 2001, Green filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Green v. United States, Civil Action No. 5:01-CV-00070 (U.S. D.C. Georgia Aug. 28, 2001)(Doc. No. 6-2, Ex. 3, docket sheet). By Order dated March 12, 2002, the District Court dismissed petitioner's § 2255 motion as untimely. Id.
On October 3, 2005, the Supreme Court of Georgia declared Green's Georgia State convictions, used to enhance his federal sentence, unconstitutional. (Doc. No. 5, Ex. B).
On December 14, 2005, Green filed another motion to vacate, set aside, or correct sentence, pursuant to § 2255. Green v. United States, Civil Action No. 5:05-CV-00088 (U.S. D.C. Georgia Dec. 14, 2005)(Doc. No. 6-2, Ex. 4, docket sheet). On April 12, 2006, petitioner's § 2255 motion was dismissed as being a successive petition, filed without prior approval from the United States Court of Appeals for the Eleventh Circuit. Id.
Green then filed an application in the United States Court of Appeals for the Eleventh Circuit, seeking an order authorizing the district court to consider a second or successive motion pursuant to § 2255. In Re Christopher Green, No. 06-11406-I (11th Cir. March 21, 2006). In his application, Green argued that he was innocent of the crimes for which he received life sentences because of a successful attack on two prior state convictions. Id. By Order dated March 21, 2006, the Court of Appeals for the Eleventh Circuit denied Green's application, stating the following:
Green asserts that this claim relies upon newly discovered evidence of a recently reversed prior state conviction. Nevertheless, "[s]ection 2255's newly discovered evidence exception...does not apply to claims asserting sentencing error." In re Dean, 341 F.3d 1247, 1248 (11th Cir. 2003)(holding that the applicant must show that the newly discovered evidence established that he was actually innocent of the offense, not merely that a sentencing error occurred). Notwithstanding Green's assertion that this new evidence proves that he "is actually innocent of the statutory offense," his claim instead seems to rest upon sentence enhancements imposed based on a statutory enhancement applied for his prior convictions. Thus, Green has pointed to no evidence that would show he is innocent of the underlying crime. In re Dean, 341 F.3d 1248.
Accordingly, because Green has failed to make a prima facie showing of the existence of either of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file ...