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Graves v. United States

November 22, 2010

HUGH GRAVES, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter

MEMORANDUM OPINION AND ORDER

Petitioner, Hugh Graves, a federal prisoner currently incarcerated at the Federal Correctional Institution at McKean, which is located in Bradford, Pennsylvania, has filed a Petition for Writ of Habeas pursuant to 28 U.S.C. § 2241, in which he challenges his conviction in the United States District Court for the Northern District of Ohio. For the reasons set forth below, this action will be dismissed for lack of subject matter jurisdiction in accordance with the directives of the federal habeas corpus statute, as amended. An appropriate order follows.

A. Relevant Factual History

On October 19, 2005, in the United States District Court for the Northern District of Ohio before the Honorable Judge James S. Gwin, Graves entered a guilty plea to the charge of Distribution of Cocaine Base (Crack) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (ECF No. 13-1, p. 5). On January 27, 2006, he was sentenced to a term of imprisonment of 240 months to be followed by ten years of supervised release (ECF No. 13-2, p. 3). Graves did not file a direct appeal of his conviction or sentence.

On October 4, 2006, Petitioner filed a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255, in which he alleged the following five grounds for relief: 1) his "conviction was obtained and the sentence imposed in violation of [his] rights to due process"; 2) he was denied effective assistance of counsel in connection with his guilty plea and plea agreement; 3) he "is entitled [to] specific performance under the terms and conditions of the Plea Agreement"; 4) the court "should depart downward from the mandatory minimum and not the default to the applicable guideline range"; and 5) he is entitled to resentencing because "the 100 to 1 ratio is unreasonable and [] this Court possesses the discretion to sentence him at less than the guideline range based upon 'crack.'" ECF No. 13-4. Thereafter, the government filed a Fed. R. Crim. P. 35(b) motion for a reduction of sentence based upon Graves' substantial assistance and a motion to dismiss Graves's § 2255 motion. On February 9, 2007, the district court granted the government's Fed. R. Crim. P. 35(b) motion and in an amended judgment, reduced Graves's sentence to 121 months of imprisonment followed by five years of supervised release. Also on February 9, 2007, the district court granted the government's motion to dismiss and dismissed Graves's § 2255 motion as moot.

On February 12, 2008, Graves filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). On February 19, 2009, the district court granted Graves's motion and reduced his sentence to 100 months of imprisonment, leaving undisturbed all other provisions of the February 9, 2007, Judgment. See ECF No. 135 at Petitioner's criminal docket number 1:05-433-JG-5.

In the meantime, on October 16, 2008, Graves filed a motion in the Court of Appeals for the Sixth Circuit seeking permission to file a second or successive § 2255 motion to vacate sentence in the district court wherein he argued basically the same bases for relief he sets forth in his currently pending 2241 Petition. On August 24, 2009, the Sixth Circuit denied Graves' motion to file a successive 2255 petition because it did not meet the gatekeeping requirements set forth therein.

On August 3, 2009, while his petition was pending in the Court of Appeals for the Sixth Circuit, Petitioner filed a Motion to Vacate and Set Aside the Conviction pursuant to 28 U.S.C. § 2255 in the District Court. See ECF No. 172 at Petitioner's criminal docket number 1:05-433-JG-5. On August 11, 2009, Judge Grim referred the matter to an United States Magistrate Judge. On September 10, 2009, the Magistrate Judge issued a Report and Recommendation recommending that the Court dismiss the pending 2255 motion because the Sixth Circuit had denied Petitioner permission to file a second or successive 2255 motion. See ECF No. 178 at Petitioner's criminal docket number 1:05-433-JG-5. On October 27, 2010, Judge Grim adopted the Report and Recommendation and dismissed Graves's motion under 28 U.S.C. § 2255. See ECF No. 184 at Petitioner's criminal docket number 1:05-433-JG-5.

B. Applicable Legal Standards - § 2241 v. § 2255

Through the instant action, Petitioner is attempting to collaterally attack his federal sentence via a petition for a writ habeas corpus under 28 U.S.C. § 2241. However, a motion under 28 U.S.C. § 2255 is the proper procedure for a federal prisoner to raise a collateral attack on his or her federal sentence for any error that occurred at or prior to sentencing. See In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997); Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990).

28 U.S.C. § 2255, in relevant part, provides as follows. 2255. Federal custody; remedies on motion attacking sentence

A prisoner in custody under [a federal] sentence 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 otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

...

An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on ...


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