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Terry L. Perkins v. Warden Ronnie Holt

July 26, 2011

TERRY L. PERKINS, PETITIONER
v.
WARDEN RONNIE HOLT,
RESPONDENT



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Terry L. Perkins ("Petitioner" or "Perkins"), an inmate presently confined at the FederalPrison Camp Canaan ("FPC Canaan") in Waymart, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. (Doc. 1.) He claims that he is actually innocent of the crime of Possession of a Firearm by a Convicted Felon to which he entered a guilty plea on March 14, 2000 and for which he was sentenced to 120 months concurrent to the statutory mandatory minimum sentence of 240 months he received on the same date following his entry of a guilty plea to one count of Possession with Intent to Distribute and Distribution of Cocaine Base. (Id. at 2, 4-7.)

Perkins has paid the required $5.00 filing fee. (See Doc. 1-1.) He also has filed a Motion for an Order directing Respondent to show cause why the Petition should not be granted. (Doc. 2.) For the reasons set forth below, the Petition will be dismissed for lack of jurisdiction, and the Motion for an Order to Show Cause will be denied as moot.

I. BACKGROUND

Perkins previously filed a petition for writ of habeas corpus with this Court under the provisions of 28 U.S.C. § 2241. (Perkins v. Holt, Civil No. 4:09-CV-2408.) In our June 28, 2010 Memorandum and Order denying his petition, we summarized the details of Perkins' previous criminal convictions and challenges to those convictions as follows:

On July 31, 1989, Perkins was presented before the Superior Court of Connecticut, and charged with a violation C.G.S.A. § 21a-277(a). [footnote omitted] On the same day, the court appointed a public defender to Perkins. Two weeks later, on August 14, 1989, the appointment was revoked. Following the revocation of Petitioner's appointed counsel, a second public defender was appointed on August 28, 1989, who later withdrew with the permission of the court on September 11, 1989. On February 6, 1990, Petitioner, apparently still without counsel, entered a plea of guilty and received a sentence of seven years, execution suspended after three years and three years probation. Perkins served three months and was then placed on supervised release.

On March 14, 2000, Perkins was sentenced in two separate cases in the United States District Court for the District of Connecticut. Perkins was sentenced to the statutory mandatory minimum of 240 months following his guilty plea to one count of Possession with Intent to Distribute and Distribution of Cocaine Base.

On that same date, but in a different case, the court also imposed a 120 month sentence on Perkins following his guilty plea and conviction on one count of Possession of a Firearm by a Convicted Felon. Perkins challenged these District of Connecticut convictions by filing a direct appeal to the Second Circuit Court of Appeals on March 20, 2000. On September 27, 2000, the Second Circuit affirmed the judgment of the district court.

Thereafter, on July 9, 2001, Perkins filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. On September 6, 2002, the motion was denied by the district court. Perkins' request for a certificate of appealability was denied. On January 17, 2006, another section 2255 motion was filed by Perkins. By order dated December 19, 2006, that motion was also denied.

On April 9, 2007, Perkins filed a Petition for Writ of Error Coram Nobis. That petition was denied on July 25, 2007. Petitioner then filed a Petition for Certification and this petition was denied on September 27, 2007.

On October 22, 2007, Perkins filed yet another section 2255 petition. That motion was denied on March 7, 2008.

On April 30, 2008, the district court issued an order denying Perkins' motion for retroactive application of the sentencing guidelines for crack cocaine offenses pursuant to 18 U.S.C. § 3582(c)(2). Perkins appealed that order and [the] Second Circuit dismissed that appeal on October 22, 2008. On May 6, 2009, Perkins filed a second motion for reduction of his sentence. This motion was denied on November 2, 2009 because Perkins' sentence was not based on a sentencing range that was lowered and a reduction in his sentence would not be consistent with the United States Sentencing Commission's policy statements.

Perkins later filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(a) and U.S.S.G. § 1B1.10 in light of the retroactive amendment to the sentencing guidelines which reduces the base offense levels for crack cocaine offenses. On January 12, 2010, Perkins' motion was denied because he is ineligible for a reduction in sentence. (Id., Doc. 12 at 1-4.)

Perkins filed his previous habeas petition with this Court on December 21,2009. (Id., Doc. 1.) Perkins sought habeas relief based upon his claim that the sentence imposed by the United States District Court for the District of Connecticut was improperly enhanced by his uncounseled 1989 conviction in Connecticut state court. After briefing of the issues by the parties, we denied the petition in our June 28, 2010 Memorandum and Order. In our Memorandum, we explained that motions filed under the provisions of 28 U.S.C. ยง 2244 are the exclusive means by which a federal prisoner can challenge a conviction or sentence that is otherwise subject to collateral attack, and that a habeas petition under the provisions of section 2241 only can be entertained if the petitioner proves that the remedy provided by section 2244 is inadequate or ineffective to test the legality of his detention. (Id., Doc. 12 at 4-5.) We then observed that Perkins had filed multiple section 2255 motions, all of which had been denied, and concluded that, to the extent that he alleged ...


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