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Jermaine Lee Osborne v. Warden A. Longley

March 6, 2012

JERMAINE LEE OSBORNE, PETITIONER,
v.
WARDEN A. LONGLEY, RESPONDENT.



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

OPINION AND ORDER*fn1

Pending before the Court is Petitioner Jermaine Lee Osborne's petition for a writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2241. He challenges a judgment of sentence imposed by the U.S. District Court for the Western District of Virginia on May 6, 2006.

For the reasons set forth below, the Court must dismiss the petition for lack of subject matter jurisdiction.

I.

A. Relevant Background

On May 2, 2006, following a guilty plea, the U.S. District Court for the Western District of Virginia sentenced Petitioner to a term of 240 months of imprisonment and 10 years of supervised release for Conspiracy to Possess With Intent to Distribute at Least 50 Grams of Cocaine Base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). He did not appeal his judgment of sentence.

On April 17, 2009, Petitioner filed with the District Court for the Western District of Virginia a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. He alleged that he is actually innocent of the conviction to which he pleaded guilty. On May 12, 2009, the district court issued a Conditional Filing Order notifying Petitioner that his § 2255 motion appeared to be untimely and allowing him the opportunity to present the court with any information regarding the timeliness of his § 2255 motion. Petitioner filed a response. On June 11, 2009, the district court issued an Opinion dismissing Petitioner's § 2255 motion as untimely. [Resp's Ex. 3, ECF No. 16-1 at 16-19].

Petitioner appealed the district court's decision. On November 9, 2009, the U.S. Court of Appeals for the Fourth Circuit denied a certificate of appealability and dismissed the appeal. [Resp's Ex. 4, ECF No. 16-1 at 21-28].

On January 28, 2010, Petitioner filed with the District Court for the Western District of Virginia a second Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255, in which he again claimed that he was actually innocent of the conviction to which he pled guilty. The district court dismissed the § 2255 motion because it was successive and Petitioner had failed to obtain the required authorization from the Fourth Circuit Court of Appeals to file it. In addition, the district court ruled that Petitioner failed to show that § 2255 was inadequate or ineffective and, therefore, the court refused to construe his motion as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The district court also advised Petitioner of the procedure for obtaining authorization from the Fourth Circuit Court of Appeals to file a second or successive § 2255 motion. [Resp's Ex. 5, ECF No. 16-1 at 23-28]. Notwithstanding the district court's advisement, Petitioner did not file a petition for authorization to file a second or successive petition with the Fourth Circuit Court of Appeals.

On February 8, 2010, Petitioner filed with the District Court for the Western District of Virginia a "Motion to compel USA to provide defendant with a lab report." The district court denied the motion for discovery stating:

In his motion, [Petitioner] seeks to obtain a laboratory chemical analysis report which he claims is in the government's possession. However, this court entered final judgment in his case on May 3, 2006. Further, this court denied his motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 on June 11, 2009 and the United States Court of Appeals for the Fourth Circuit dismissed his appeal on November 9, 2009. Accordingly, the court finds no reason to grant [Petitioner's] motion for discovery at this time. [Resp's Ex. 6, ECF No. 16-1 at 27-28].

On November 18, 2011, Petitioner filed with the District Court for the Western District of Virginia a third Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. In support of his motion, he explained that he had received a copy of the laboratory chemical analysis report and that it establishes that he possessed less than 50 grams of cocaine base. Once again, the district court dismissed the § 2255 motion as successive and Petitioner had failed to obtain authorization from the Fourth Circuit Court of Appeals to file it. The district court also once again advised him of the procedure for obtaining authorization from the Fourth Circuit Court of Appeals to file a second or successive § 2255 motion. See docket entries numbered 73-75 in United States v. Osborne, No. 7:05-cr-00094 (W.D. Va.). Notwithstanding the district court's advisement, Petitioner did not file a petition for authorization to file a second or successive petition with the Fourth Circuit Court of Appeals.

Pending before this Court is Petitioner's request for habeas relief pursuant to 28 U.S.C. § 2241. [ECF No. 7]. Therein, Petitioner argues, as he has several times before the District Court for the Western District of Virginia, that he is actually innocent of violating 21 U.S.C. § 841(b)(1)(A) because he did not possess 50 grams of cocaine base. He also argues, as he previously has before the District Court for the Western District of Virginia, that he is actually innocent of violating 21 U.S.C. § 846 because he claims that he did not participate in a conspiracy since he had no co-defendants.

In the Answer [ECF No. 16], Respondent contends that the petition must be dismissed for lack of subject matter jurisdiction. Petitioner has filed a Reply [ECF No. ...


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