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Patrick R. Bennett v. Warden Robert Wellinger

August 24, 2011

PATRICK R. BENNETT,
PETITIONER,
v.
WARDEN ROBERT WELLINGER, RESPONDENT.



The opinion of the court was delivered by: Lisa Pupo Lenihan United States Magistrate Judge

District Judge Kim R. Gibson

Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION AND ORDER

On July 1, 2010, Petitioner, Patrick R. Bennett, a federal prisoner, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ' 2241 in which he seeks to challenge his federal convictions on the basis of Supreme Court law that post-dates his convictions. Specifically, Petitioner argues that his money laundering convictions have been invalidated by the United States Supreme Court decisions in United States v. Santos, 553 U.S. 507 (2008) and Cuellar v. United States, 553 U.S. 550 (2008). For the reasons set forth below, the Petition will be dismissed without prejudice as Petitioner currently is trying to raise his claims in his presently pending 2255 action filed in the United States District Court for the Southern District of New York.

A. Relevant Factual History

Petitioner's undisputed relevant factual history is set forth in the Response (ECF No. 12). Specifically, on June 10, 2000, in United States District Court for the Southern District of New York, a jury found Petitioner guilty of various offenses, including money laundering, where he was sentenced to a term of thirty years. Petitioner filed an timely appeal and the Court of Appeals for the Second Circuit affirmed his conviction but vacated his sentence and remanded for resentencing. United States v. Bennett, 252 F.3d 559, 561 (2d Cir. 2001). Petitioner was resentenced on June 5, 2002. Petitioner appealed his new sentence and on September 18, 2003, the Second Circuit Court of Appeals affirmed his sentence.

On March 17, 2003, Petitioner filed a pro se Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. ' 2255, in which he claimed that his trial and appellate counsel were ineffective. See Bennett v. U.S., Civil No. 03-1852, 2004 WL 2711064 (S.D.N.Y. November 23, 2004). On November 23, 2004, the United States District Court for the Southern District of New York issued an Opinion and Order denying Petitioner's request for an evidentiary hearing and bail and denying all other motions and requests as lacking merit. It does not appear that any appeal from this order was filed.

On April 11, 2005, Petitioner filed a second Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. ' 2255, in which he asserted that, under Blakely v. Washington, 542 U.S. 296 (2004), his conviction should be set aside because his sentence was based upon judicial findings of fact contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000) and his trial and appellate counsel were ineffective. See Bennett v. United States, Civil No. 03-1852, 2006 WL 738162, *1 (S.D.N.Y. March 22, 2006). On March 22, 2006, the District Court for the Southern District of New York denied the ' 2255 motion. Following a timely appeal, on December 3, 2008, the Second Circuit Court of Appeals remanded two ineffective assistance of counsel issues back to the District Court. See Bennett v. United States, 301 Fed. App'x 31, 32 (2d Cir. 2008).

On May 16, 2009, Petitioner attempted to amend his ' 2255 motion and add the claim that his money laundering convictions should be vacated based on United States v. Santos, 553 U.S. 507 (2008).

On June 4, 2009, the District Court denied the Motion to Amend/Correct on the basis that only the issues remanded by the Second Circuit Court of Appeals were being reviewed. On November 3, 2009, the District Court issued a Memorandum and Opinion regarding the remanded issues and determined that Petitioner's defense counsel was effective. See Bennett v. United States, Civil No. 03-1852, 2009 WL 3614613, *13 (S.D.N.Y. Nov. 3, 2009). On December 9, 2009, Petitioner filed a notice of appeal to the Court of Appeals.

On February 17, 2010, Petitioner attempted to amend his ' 2255 motion by filing a pro se amended petition in which he requested (1) that the court allow him to amend the habeas corpus petition that was pending in the Second Circuit and (2) that the court rule on his claim of ineffective assistance of counsel. The Court did not docket the amendment stating that the District Court no longer had jurisdiction as the action currently was pending in the Second Circuit Court of Appeals and it was inappropriate to allow Petitioner to appear pro se while he is being represented by counsel. Therefore, the District Court had Petitioner's pro se motion returned to him.

On November 12, 2010, the Second Circuit Court of Appeals issued the following Order.

Appellant, pro se , moves to hold the appeal in abeyance in order to move in the district court toamend his 28 U.S.C. ' 2255 motion, and for a petition for a writ of mandamus and leave to proceed in forma pauperis . Upon due consideration, it is hereby ORDERED that the motion to hold the appeal in abeyance is DENIED. It is further ORDERED that the motion is TRANSFERRED to the district court for Awhatever further action the district court finds appropriate, as if it had been filed directly in the district court,@ Whab v. United States, 408 F.3d 116, ...


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