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George A. Winkelman v. Archie B. Longley

November 8, 2011

GEORGE A. WINKELMAN, PETITIONER,
v.
ARCHIE B. LONGLEY, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

OPINION AND ORDER

George A. Winkelman ("Petitioner") is currently incarcerated in the Federal Correctional Institution at McKean ("FCI-McKean"), which is located within this judicial district, serving an aggregate sentence of 480 months for drug and firearms convictions, which were obtained in 2003. Petitioner was convicted in and sentenced by the United States District Court for the Middle District of Pennsylvania (the "Sentencing Court"). Petitioner has now filed what purports to be a habeas petition pursuant to 28 U.S.C. §2241, seeking not to challenge the execution of his sentences but the validity of his convictions. ECF No. 4. Because Petitioner has engaged in an abuse of the writ, the case should be dismissed as such. Alternatively, because Petitioner cannot show that a Section 2255 motion is inadequate or ineffective to test the validity of his convictions, the present petition must be dismissed as jurisdictionally improper. Petitioner simply fails to show why he could not have previously brought the claims that he now raises herein. Nor does Petitioner offer any new evidence that would establish his actual innocence of the crimes for which he was convicted.

I.FACTUAL AND PROCEDURAL HISTORY

On September 25, 2001, Petitioner was charged in the Middle District of Pennsylvania with multiple counts of drug and firearms crimes. U.S.A. v. George A. Winkelman, No. 4:01-cr-00304-YK-8 (M.D. Pa.).

On June 18, 2003, a jury in the Middle District of Pennsylvania found Petitioner guilty of five counts related to narcotics trafficking and firearms charges. Id. ECF No. 725. After an appeal, where the United States Court of Appeals for the Third Circuit affirmed Petitioner‟s convictions but remanded for resentencing, Petitioner was resentenced by the Sentencing Court on October 17, 2006 to an aggregate term of 480 months of imprisonment followed by ten years of supervised release. On October 26, 2006, Petitioner filed an appeal following the resentencing and on January 19, 2007, the Court of Appeals dismissed the appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. U .S.A. v. Winkelman, 06-4584 (3d Cir. Order filed 1/19/2007).

On February 23, 2007, Petitioner filed a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255, arguing numerous claims, including ineffective assistance of counsel during trial and appeal, constitutional violations (4th, 5th, & 6th Amendments), plain error by the Sentencing Court, and that the indictment was insufficient.

U.S.A. v. George A. Winkelman, No. 4:01-cr- 00304-YK-8 (M.D. Pa. ECF No. 1020). It should be noted that on December 31, 2007, soon after the Supreme Court had issued its decision in Watson v. United States, 552 U.S. 74 (2007), Petitioner sought leave to amend his Section 2255 motion, U.S.A. v. George A. Winkelman, No. 4:01-cr- 00304-YK-8 (M.D. Pa. ECF No. 1072), in order to raise a claim, challenging his convictions at Counts Ten and Twelve (the firearms convictions) based upon the Watson decision. The Sentencing Court denied Petitioner leave to amend because of Petitioner‟s failure to comply with local rules. On March 10, 2008, the Sentencing Court issued a memorandum order denying Petitioner‟s § 2255 motion for failure to make a substantial showing of the denial of a constitutional right. U.S. v. Winkelman, 548 F.Supp.2d 142, 145 (M.D. Pa. 2008).

On March 27, 2008, Petitioner filed a Notice of Appeal and an Application for Certificate of Appealability. On July 10, 2008, the Court of Appeals, denied the application for a certificate of appealability, finding that "Jurists of reason could not debate that the District Court properly dismissed appellant‟s 28 U.S.C. § 2255 motion, his motion for appointment of counsel, his motions to amend, and his motions for discovery." U.S.A. v. George Winkelman, No. 08- 1932 (3d Cir. order dated July 10, 2008).

On December 19, 2008, Petitioner filed a motion for leave to proceed in forma pauperis in order to prosecute a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Western District of Pennsylvania, ("the 2008 Section 2241 Petition") in which he again challenged his conviction for firearms violations. Winkelman v. Quintana, No. 08-354E (W.D. Pa. 2008). Specifically, Petitioner argued, as he had when he sought leave to amend his Section 2255 motion, that his firearms convictions were invalidated by the United States Supreme Court's decision in Watson rendered on December 10, 2007. Petitioner also argued that he received an unauthorized sentence for his firearms convictions based on the decision of the United States Court of Appeals for the Second Circuit in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). On April 14, 2011, Magistrate Judge Baxter issued an opinion, dismissing the 2008 Section 2241 petition as jurisdictionally improper and rejecting his contention that Watson required that his conviction for the firearms violation be overturned. Winkelman v. Quintana, No. 08-354E (W.D. Pa. ECF No. 18, 4/14/2008).

On January 22, 2010, Petitioner filed, in the Sentencing Court, a Motion for Fraud Upon the Court pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, in which he claims that government officials, state officials, and witnesses for the prosecution (including the prosecuting Assistant United States Attorney, a DEA Special Agent, and a Pennsylvania State Trooper) all committed perjury and fabricated evidence therefore committing fraud upon the court. U.S.A. v. George A. Winkelman, No. 4:01-cr-00304-YK-8 (M.D. Pa. ECF No. 1114). On July 7, 2010, the Sentencing Court filed a Memorandum Order in which the Court treated the motion as a second or successive § 2255 motion and therefore denied the motion for lack of jurisdiction. Winkelman v. U.S., No. 4:CR-01-403, 4:CV-07-348, 2010 WL 2696861 (M.D. Pa. July 7, 2010). On July 16, 2010, Petitioner filed a Motion for Reconsideration, and on July 20, 2010, he appealed the July 7, 2010 Memorandum Order. On November 12, 2010, after some intervening proceedings, the Court of Appeals denied a certificate of appealability. On November 26, 2010, Petitioner filed a "Petition for Rehearing before Original Panel" with the Court of Appeals, and on December 10, 2010, the Court of Appeals denied the Petition for Rehearing.

Not even ten days later, with the ink barely dry on the Court of Appeals order denying Petitioner a certificate of appealability, Petitioner, on December 20, 2010 signed the instant Section 2241 Petition, raising herein either the same claims has he had previously raised or new claims that he had not previously raised.

The Section 2241 petition was ultimately docketed, ECF No. 4, along with a brief in support. ECF No. 5. The Respondent filed an Answer, asserting that the Section 2241 Petition was jurisdictionally improper. ECF No. 12. Petitioner filed a Traverse. ECF No. 13. This case was then reassigned to the undersigned in June, 2011. ECF No. 14.

All parties have consented to the Magistrate Judge‟s exercise of plenary jurisdiction in this case. ECF Nos. 7 & 10.

II.DISCUSSION

Petitioner essentially raises three issues in the ...


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