The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly
Christopher Hastings ("Petitioner") is currently incarcerated at the Federal Correctional Institution in McKean, which is located within this judicial district. He is serving a sentence of 300 months imposed by the United States District Court for the District of South Carolina ("the Sentencing Court") for drug convictions obtained in January 1999 when he pleaded guilty pursuant to a plea bargain.
Petitioner has filed what purports to be a Petition for Writ of Habeas Corpus ("the Petition") pursuant to 28 U.S.C. § 2241, seeking to challenge the validity of his sentence as imposed. Petitioner makes two claims in the Petition. First, he claims that he was wrongfully found to be in possession of 5 kilograms of cocaine and his sentence was enhanced accordingly, when, in fact, he only pleaded guilty to being in possession of more than 3.5 but less than 4.5 kilograms of cocaine. Second, Petitioner claims that he is actually innocent of the "career criminal" enhancement of his sentence.
Because Petitioner cannot show that a Section 2255 motion is inadequate or ineffective to test the validity of his sentence as imposed, the Petition must be dismissed as jurisdictionally improper. Petitioner has failed to show why he could not have previously brought the two claims that he now raises herein. In the alternative, the Petition is an abuse of the writ and should be dismissed because Petitioner brought at least one of these claims before (i.e., the claim he was actually innocent of the career criminal enhancement) and/or because he could have also brought the second claim previously.
I. FACTUAL AND PROCEDURAL HISTORY
This current Petition is just the latest in a series of post-conviction attacks that Petitioner has mounted. In disposing of this Petition, the Court takes judicial notice of the docket and filings in U.S.A. v. Christopher Hastings, No. 2:98-cr-00600-PMD-1 (D.S.C.). The Sentencing Court in one of its opinions summarized the facts and procedural history as follows:
In 2008, Petitioner was apprehended in a control transaction involving a substantial amount of illegal drugs. Petitioner, along with a co-conspirator, was subsequently indicted for a conspiracy to possess with intent to distribute cocaine and marijuana, and possession with intent to distribute cocaine and marijuana. On January 20, 2009, Petitioner pled guilty to the conspiracy charge, and agreed in the plea agreement that the Government would file an Information pursuant to 21 U.S.C. § 851 "based upon a prior felony drug conviction for possession of a narcotic controlled substance in Bakersfield, California." The previous conviction in question took place in 1988. Also in the plea agreement, Petitioner specifically stipulated that he was personally responsible for between 3.5 and 4.5 kilograms of cocaine.
The Government did, in fact, file a § 851 Information which notified Petitioner that he was subject to increased criminal penalties because of his prior criminal record. On June 30, 1999, this Court found that Petitioner was a career offender, and therefore sentenced him to 300 months of imprisonment. Petitioner appealed this sentence to the United States Court of Appeals for the Fourth Circuit, claiming that this Court should not have sentenced him as a career offender. In an unpublished per curiam opinion issued on May 24, 2000, the Fourth Circuit affirmed this Court's sentence.
On June 28, 2001, Petitioner filed a Petition for habeas corpus relief pursuant to 28 U.S.C. § 2255, [in Hastings v. U.S., Civ.A.No. 01-2783 (D.S.C.) (the "June 2001 Motion")] challenging his 1988 conviction and sentence. On July 29, 2002, this Court filed an Order dismissing his habeas petition as untimely. Petitioner appealed this Court's decision to the Fourth Circuit, and the Fourth Circuit, in a decision dated May 21, 2003, citing to the fact that the precedent relied upon by this Court had been overruled in the interim, vacated and remanded Petitioner's case back to this Court for further consideration. On September 9, 2003, this Court issued another Order denying Petitioner's claims for habeas relief, including several claims that his counsel for the 1988 conviction had been ineffective. Petitioner appealed this Court's Order, and in an unpublished per curiam decision issued on June 18, 2004, the Fourth Circuit affirmed this Court's dismissal of Petitioner's habeas claim.
On December 19, 2005, Petitioner submitted another claim for habeas relief pursuant to § 2255, [in Hastings v. U.S., Civ.A. No. 05-3584 (D.S.C.) (the "December 2005 Motion")] asserting that this Court's determination that Petitioner was a career offender violated his Sixth Amendment rights, and violated the recently decided Supreme Court cases of Blakely and Booker, which had not been decided at the time of Petitioner's sentencing. Since this was a successive habeas petition, this Court dismissed Petitioner's petition without prejudice so that he could seek leave from the Fourth Circuit to file a successive petition. In an unpublished per curiam opinion on February 21, 2007, the Fourth Circuit denied Petitioner's appeal, finding that he had not made the requisite showing for a certificate of appealability.
Petitioner filed the present Motion to Vacate pursuant to § 2255 on November 3, 2008. The Government filed a Response in Opposition to Petitioner's petition on December 18, 2008.
U.S.A. v. Christopher Hastings, No. 2:98-cr-00600-PMD-1 (D.S.C. ECF No. 63 at 1 to 3, filed 6/29/2009) ("the June 2009 Opinion").
The June 2009 Opinion was addressing a "Motion to Vacate Sentence Under 'Savings Clause' Title 28 United States Code, 2255(e) by Federal Prisoner" ("the November 2008 Motion") Id. (ECF No. 53, filed 11/3/2008). In that November 2008 Motion, Petitioner argued that he was "actually and factually innocent of the sentence which was imposed under an Unconstitutional Regime back in 1999. Petitioner argues that he is innocent of the career offender provision of the guidelines that were used in 1999 because, the mandatory use of the guidelines have been deemed Unconstitutional[.]" Id., (ECF No. 53-1 at 2). This is the same issue that Petitioner raises in the Petition pending before this Court. ECF No. 10 at 8 ("Petitioner argues that he is actually and factually innocent of the mandatory use of the guidelines due to the intervening change in the law, which held that its mandatory use violates one's rights. The mandatory use of the guidelines regime has ended."). The Sentencing Court in its June 2009 opinion dismissed Petitioner's November 2008 motion as being a second or successive Section 2255 motion that was filed without leave of the United States Court of Appeals for the Fourth Circuit and, alternatively as being meritless, since the holding of United States v. Booker, 543 U.S. 220 (2005) that the mandatory Sentencing Guidelines were unconstitutional, did not apply retroactively to cases that had become final prior to the Booker decision, as had Petitioner's conviction. U.S.A. v. Christopher Hastings, No. 2:98-cr-00600-PMD-1 (D.S.C. ECF No. 63). Thereafter, Petitioner sought a certificate of appealability from the Court of Appeals for the Fourth Circuit, which denied the same. U.S. v. Hastings, No. 09-7304 (4th Cir. ECF No. 11 filed 12/28/2009). The Mandate of the Court of Appeals for the Fourth Circuit did not issue until February 19, 2010. Id. (ECF No. 13).
Soon after the issuance of the Mandate, Petitioner initiated the current proceedings in this Court on April 7, 2010. The Petition was formally docketed. ECF No. 4. The Respondent filed an Answer, wherein he pointed out that the Petition was jurisdictionally improper. ECF No. 8. Petitioner then filed a Reply to the Answer. ECF No. 10. Subsequently, Petitioner also filed a "Statement and Argument Establishing the Court's Subject Matter Jurisdiction." ECF No. 12. In June 2011, ...