Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Donovan Hough v. Francisco J. Quintana

September 28, 2011

DONOVAN HOUGH, PETITIONER,
v.
FRANCISCO J. QUINTANA, ET AL., RESPONDENT.



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

OPINION AND ORDER*fn1

Petitioner Donovan Hough is a federal inmate currently incarcerated at the Federal Correctional Institution McKean, in Bradford, Pennsylvania. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges the 1991 judgment of sentence (Counts Seven, Eight, and Nine) for firearms violations under 18 U.S.C. § 924(c), which he received in a criminal case that was before the U.S. District Court for the Western District of New York. He claims that the judgment of sentence is invalidated following two decisions subsequently issued by the U.S. Court of Appeals for the Second Circuit, United States v. Whitley, 529 F.3d 150 (2d Cir. 2008) and United States v. Williams, 558 F.3d 166 (2d Cir. 2009).

For the reasons set forth below, the petition is dismissed for lack of subject matter jurisdiction.

I.

A.Relevant Background

On June 14, 1991, following a jury verdict, the U.S. District Court for the Western District of New York sentenced Petitioner to a total term of imprisonment of 480 months, to be followed by five years of supervised release, for Intentionally and Unlawfully Engaging in a Continued Criminal Enterprise, in violation of 21 U.S.C. § 848 (Count One); Conspiracy to Distribute Cocaine and Marijuana, in violation of 21 U.S.C. § 846 (Count Two); two counts of Possession With Intent To Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts Three and Five); two counts of Possession With Intent To Distribute Marijuana, in violation of 21 U.S.C. § 841(a)(1) (Counts Four and Six); four counts of Unlawfully Using or Carrying a Firearm in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c) & 2 (Counts Seven, Eight, Nine, and Ten); Evasion of Federal Income Tax, in violation of 26 U.S.C. § 7201 (Count Eleven); and Structuring Transactions to Evade Reporting Requirements, in violation of 31 U.S.C. § 5324(3) (Count Twelve).

Petitioner appealed his judgment of sentence. On April 9, 1992, the Second Circuit Court of Appeals affirmed. Petitioner's writ of certiorari was denied by the Supreme Court in October 1992.

On July 29, 1992, Petitioner filed a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. On September 27, 1993, the district court denied the motion. On October 27, 1993, Petitioner filed a Notice of Appeal, which was denied by the Second Circuit Court of Appeals for failure to comply with the Civil Appeals Management Plan.

On March 5, 1997, Petitioner filed a second Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255, arguing that: 1) his § 924 firearm convictions "should be vacated in light of the Supreme Court's Decision in United States v. Bailey, 576 U.S. 137 (1995)"; 2) he should have received a "downward departure at sentencing on the basis of civil forfeiture"; and 3) his § 846 conviction should "be vacated because of the Supreme Court decision in Rutledge v. United States," 517 U.S. 292 (1996). On February 26, 1998, the district court granted in part the Motion to Vacate. Specifically, Counts Two and Ten were vacated along with the special assessments ordered on those counts. The court determined that, because vacating the counts did not affect the length of Petitioner's sentence, resentencing was not necessary. Petitioner filed a notice of appeal, which the Second Circuit Court of Appeals denied on May 30, 2000 because Petitioner had not made a "substantial showing of the denial of a constitutional right."

On August 2, 2004, Petitioner filed a motion with the Second Circuit Court of Appeals for permission to file a second or successive § 2255 motion. That motion was denied.

In the instant petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, Petitioner challenges the judgment of sentence he received for firearms violations (Counts Seven, Eight, and Nine). In their Answer (ECF No. 13), Respondents contend that the petition should be dismissed for lack of subject matter jurisdiction.

B. Discussion

1. Claims Generally Cognizable In Federal Habeas Corpus Proceedings

28 U.S.C. § 2255 permits a federal prisoner to challenge his or her sentence "upon the ground that [it] 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 sentences was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255. Congress, by enacting 28 U.S.C. § 2255, provided a specific avenue by which a defendant could attack his or her federal conviction or sentence. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009); Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam); Chambers v. Romine, 41 F.App'x. 525, 526 (3d Cir. 2002); Briggs v. Levi, 275 F.App'x 111, 112-13 (3d Cir. 2008) (per curiam); Brown v. Mendez, 167 F.Supp.2d 723, 726 (M.D. Pa. 2001) ("As a general rule, a § 2255 motion 'supersedes habeas corpus and provides the exclusive remedy' to one in custody pursuant to a federal court conviction."), quoting Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972) (per curiam). In contrast, "matters concerning the conditions of confinement or the execution of a sentence are within the subject matter jurisdiction of the court presiding in the district in which a prisoner is incarcerated." DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam), citing Lee v. United States, 501 F.2d 494, 500 (8th Cir. 1974). Such ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.