The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Petitioner George A. Winkelman is a federal inmate currently incarcerated at the Federal Correctional Institution McKean, in Bradford, Pennsylvania. He has filed a Petition For Writ Of Habeas Corpus pursuant to 28 U.S.C. § 2241 [ECF No. 4 at pp. 1-5], and an accompanying 15-page memorandum with attached exhibits [ECF No. 4 at pp. 6-44]. He challenges his 2003 convictions for firearms violations under 18 U.S.C. § 924(c)(1)(A), which he received in a criminal case that was before the U.S. District Court for the Middle District of Pennsylvania. Specifically, he claims that: (1) those convictions are invalidated by the U.S. Supreme Court's decision on December 7, 2007, in Watson v. United States, 552 U.S. 74 (2007); and (2) he received an invalid sentence for his firearms convictions based upon the U.S. Court of Appeals for the Second Circuit's decision on June 16, 2008, in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). As relief, he seeks to have his firearms convictions vacated and his case remanded for resentencing.
For the reasons set forth below, the petition is dismissed for lack of subject matter jurisdiction.
On September 25, 2001, a federal grand jury serving in the U.S. District Court for the Middle District of Pennsylvania handed up an 11-count indictment against ten defendants, including Petitioner, alleging a conspiracy to possess with intent to distribute and distribution of more than five kilograms of powder cocaine in the town of Renovo, Pennsylvania. The indictment also alleged substantive counts of possession with intent to distribute. In October 2001 and March 2002, the U.S. Government filed superseding indictments. By March 2003, all defendants other than Petitioner and his brother, John F. Winkelman, had entered into plea agreements with the government.
On April 10, 2003, a federal grand jury handed up a third superseding indictment, resulting in a total of sixteen counts. This indictment contained new allegations and charges. In relevant part, it added Counts Ten and Twelve against Petitioner, which are the two counts that he is challenging in this action. At Count Ten, he was charged with violating 18 U.S.C. § 924(c)(1) from on or about January 1986 to October 2001, for having knowingly used, carried and possessed firearms during and in relation to and in furtherance of a drug trafficking crime (the crime being conspiracy to possess with intent with intent to distribute and distribution of cocaine and marijuana in violation of 21 U.S.C. § 846). At Count Twelve, he was charged with violating 18 U.S.C. § 924(c)(1) for engaging in the same conduct during the fall of 2000. [ECF No. 4 at p. 28, Pet's Ex. B].
By way of background, prior to its amendment in 1998, 18 U.S.C. § 924(c)(1) set a mandatory minimum sentence, depending on the facts, for a defendant who, "during and in relation to any crime of violence or drug trafficking crime[,] ... uses or carries a firearm[.]" The statute leaves the term "uses" undefined. In Smith v. United States, 508 U.S. 223 (1993), the Supreme Court held that "a criminal who trades his firearm for drugs 'uses' it during and in relation to a drug trafficking offense within the meaning of § 924(c)(1)." Id. at 241 (emphasis added). Two years later, the issue in Bailey v. United States, 516 U.S. 137 (1995) was whether possessing a firearm kept near the scene of drug trafficking is "use" under § 924(c)(1). The Supreme Court decided that mere possession does not amount to "use": "§ 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense," id. at 143.
In 1998, Congress responded to Bailey by amending § 924(c)(1). The amendment broadened the provision to cover a defendant who " uses or carries a firearm, or who, in furtherance of any [crime of violence or drug trafficking crime], possesses a firearm[.]" 18 U.S.C. § 924(c)(1)(A) (emphasis added). The amendment did not touch the "use" prong of the statute.
Thus, an individual can now be found guilty under the "use" or "possession" prongs of § 924(c)(1)(A), which denote different conduct. Petitioner now insists that the jury found him guilty of Counts Ten and Twelve only under the "use" prong, and therefore those convictions are invalid under the Supreme Court's 2007 holding in Watson v. United States, 552 U.S. 74 (2007). Watson considered the converse of the issue that was decided in Smith. It held that "[g]iven the ordinary meaning and the conventions of English, we hold that a person does not 'use' a firearm under § 924(c)(1)(A) when he receives it in trade for drugs." Id. at 83. Petitioner asserts that the evidence at his trial showed that he traded drugs for a firearm, and therefore under Watson that conduct is not "use" under § 924(c)(1).
Importantly, however, Petitioner's own exhibits show that the jury was instructed that it could find him guilty of Counts Ten and Twelve if it found that, in accordance with the amendment to § 924(c)(1)(A), he "knowingly possessed the firearm in furtherance of the defendant's commission of the drug trafficking crime." [ECF No. 4 at p. 58, Pet's Ex. E (emphasis added)]. Moreover, although he has attached as an exhibit a verdict slip which indicates that the jury rendered a general verdict and did not specify whether Petitioner was guilty under the "use," "carry," or "possession" prong of § 924(c)(1)(A) [ECF No. at p. 30], the Judgment and Commitment Order for his criminal case expressly states that at Counts Ten and Twelve he was convicted under the "possession" prong [ECF No. 9-3 at p. 22, Resp't Ex. 4]. In his motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which he filed with the Middle District Court in February 2007, Petitioner himself described his convictions at Counts Ten and Twelve as being for "possession of firearms in relation to drug trafficking." [ECF No. 9-4 at p. 3, Resp't Ex. 5]. Therefore, although Petitioner's first habeas claim is premised upon the contention that the jury convicted him under the "use" prong, it is his burden of proving that fact and he cannot meet that burden.
On November 13, 2003, the district court sentenced him to a total aggregate term 720 months' imprisonment, to be followed by ten years of supervised release.*fn2 On May 18, 2006, the U.S. Court of Appeals for the Third Circuit affirmed his convictions but vacated the sentences the court had imposed at Counts One, Five, and Nine and remanded for resentencing under United States v. Booker, 543 U.S. 220 (2005) and United States v. Cooper, 437 F.3d 324 (3d Cir. 2006). [ECF No. 9-3 at pp. 7-33, Resp't Ex. 3].
On October 17, 2006, the district court resentenced him to total aggregate term of 480 months' imprisonment to be followed by 10 years of supervised release. Petitioner filed another appeal, which the Third Circuit Court dismissed pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure.
On February 23, 2007, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, in which he raised 27 claims of ineffective assistance of counsel during trial and appeal, trial court error, and indictment insufficiency. [ECF No. 9-4 at pp. 2-36, Resp't Ex. 5, and ECF No. 9-5 at pp. 2-42, Resp't Ex. 6]. On December 31, 2007, soon after the Supreme Court had issued its decision in Watson, Petitioner sought to supplement his § 2255 motion in order to raise a claim challenging his convictions at Counts Ten and Twelve based upon that decision ...