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Vincent Osborne v. Warden David Ebbert

December 9, 2010

VINCENT OSBORNE, PETITIONER
v.
WARDEN DAVID EBBERT, RESPONDENT



The opinion of the court was delivered by: (Judge Caputo)

MEMORANDUM

I. Introduction

Petitioner, Vincent Osborne, a federal prisoner confined at the Federal Correctional Institution in Allenwood, Pennsylvania, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Osborne is serving a sentence imposed by the United States District Court for the District of Massachusetts. He argues his sentence is illegal as it was improperly enhanced by a prior conviction for escape from custody. He contends that while an escape conviction was previously considered a per se crime of violence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), it no longer qualifies as such under the Fourth Circuit Court of Appeals decision in United States v. Bethea, 603 F.3d 254 (4th Cir. 2010) which follows the United States Supreme Court's decision in Chambers v. United States, *fn1 U.S. , 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

Upon review of the petition, the Court will dismiss it without prejudice to Mr. Osborne filing a motion under 28 U.S.C. § 2255 in the sentencing Court.

II. Background

On September 23, 1997, a jury convicted Mr. Osborne of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced the same day as a career offender under the ACCA to a term of 15 years in prison. United States v. Osborne,164 F.3d 626 (4th Cir. 1998) (unpublished table decision).

In early January 1999, Mr. Osborne sent a letter request to the sentencing court suggesting he was improperly sentenced under the ACCA as he does not stand convicted of three predicate violent felonies. The Court advised Petitioner that aside from his two admitted burglary convictions, his "escape from custody is documented" and "is a qualifying prior serious felony under the Armed Career

Criminal Act." See Doc. 1, Pet. at p. 9.*fn2

On March 9, 1999, the Fourth Circuit Court of Appeals affirmed his conviction. United States v. Osborne, 173 F.3d 853 (4th Cir. 1999)(unpublished table decision). Mr. Osborne then filed a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, which was denied. He then filed an appeal with the Fourth Circuit Court of Appeals, but later voluntarily withdrew it pursuant to Fed. R. A. P. 42(b). See Osborne v. United States, No. 00-6484 (4th Cir. May 11, 2000).

Petitioner filed the instant habeas petition for writ of habeas corpus on October 7, 2010, pursuant to 28 U.S.C. § 2241. He argues that his prior escape from custody conviction is not a "violent felony" under the ACCA. Consequently, he claims his present sentence is illegal because he has not incurred three prior violent felonies or serious drug offenses necessary to be sentenced under the ACCA.

III. Discussion

Habeas corpus petitions brought under § 2241 are subject to summary dismissal pursuant to Rule 4 ("Preliminary Review; Serving the Petition and Order") of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. § 2254 (1977)(Rule 4 applies to § 2241 petitions through Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Court). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D.Pa. 1979) (explaining that Rule 4 is

"applicable to Section 2241 petitions through Rule 1(b)"). Rule 4 provides in pertinent part: "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

"A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the means to collaterally challenge a federal conviction or sentence." Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009), and the motion must be presented to the court that imposed the sentence. See 28 U.S.C. ยง 2255(a)(providing that a defendant "may move the court which imposed the sentence"). Thus, federal inmates ...


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