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Richard Potts v. David J. Ebbert

September 28, 2012

RICHARD POTTS, PETITIONER,
v.
DAVID J. EBBERT, RESPONDENT.



The opinion of the court was delivered by: (judge Caputo)

(MAGISTRATE JUDGE CARLSON)

MEMORANDUM

Presently before the Court is Magistrate Judge Carlson's Report and Recommendation (Doc. 5) to Petitioner Richard Potts' Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (the "Petition"). (Doc. 1.) Magistrate Judge Carlson recommends that the Petition be dismissed or transferred to the United States District Court for the Eastern District of Pennsylvania for lack of jurisdiction. Petitioner filed timely objections to the Magistrate Judge's recommendations. Because Petitioner has not demonstrated that a petition under 28 U.S.C. § 2255 would be ineffective or inadequate, the Petition will be dismissed for lack of jurisdiction.

I. Background

A. Factual History

Petitioner Richard Potts, an inmate confined at Canaan United States Penitentiary ("USP-Canaan"), filed the instant action pursuant to 28 U.S.C. § 2241. (Doc. 1.) Petitioner claims that he is "entitled to relief from the enhanced penalty of 21 U.S.C. § 841(b)(1)(A)(iii)" and he is "actually innocent of violating 21 U.S.C. § 848(e)(1)" in light of the Supreme Court's decision in DePierre v. United States, - - - U.S. - - - , 131 S. Ct. 2225, 180 L. Ed. 2d 114 (2011). (Id. at ¶ 13.)

This litigation has been summarized by Petitioner as follows:

Sometime in late 1997, a grand jury returned an indictment charging Petitioner with a two-count indictment. Possession of cocaine base with intent to distribute in Count One and carrying a firearm during and in relation to the drug trafficking in Count Two. On July 7, 1998, Petitioner pled guilty before the Honorable John R. Padova to both counts of that indictment (DK#98-41). Petitioner was sentenced to serve 180 months imprisonment in 1999 by the Honorable John R. Padova.

On August 8, 2001, a grand jury returned the first superseding indictment against Petitioner charging him with a single count of conspiracy to distribute cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 846. On August 1, 2002, a grand jury returned a second superseding indictment adding an additional count that charged against Petitioner a murder in furtherance of a continuing criminal enterprise in violation of 21 U.S.C. § 848(e)(1)(A) (Count Seven). Petitioner was convicted on both counts by a jury on March 27, 2003, and on July 16, 2003, Petitioner was sentenced to concurrent terms of life imprisonment on each count to also run concurrent with Judge Padova's sentence of 180 months in the initial indictment.

Petitioner submitted a timely notice of appeal appealing his sentence and conviction. On appeal (Potts I) Petitioner argued five issues: (1) that the District Court was in error for failure to dismiss the jury, or at least give a curative instruction; (2) that the evidence was insufficient to prove that he engaged in the charged conspiracy; (3) that the evidence was insufficient to prove he possessed the required intent to kill Rodney Trusty; (4) that the testimony of Daniel Coach was so corrupt that it could not form the basis of a guilty verdict; and (5) that the District Court erred when it calculated his sentence.

On June 27, 2005, the Third Circuit Court of Appeals affirmed the conviction, but vacated the sentence and remanded for resentencing in light of the Supreme Court's decision in Booker. Potts v. United States, 138 F. App'x 439 (3d Cir. 2005). On remand, on October 20, 2005, Petitioner was resentenced to two concurrent life sentences on both counts. Petitioner submitted a timely notice of appeal appealing his sentence and conviction. On appeal (Potts II), Petitioner's counsel filed an Anders Brief and asked for leave to withdraw as counsel. Petitioner filed a pro se brief offering three grounds for appeal: (1) the District Court committed error during the jury voir dire; (2) the District Court erred by finding that the substance he distributed was crack, rather than powder cocaine; and (3) that the sentence imposed was unreasonable because the Court failed to give adequate consideration of all of the 18 U.S.C. § 3553(a) factors.

On August 11, 2006, Petitioner filed a motion seeking grand juror's information, which was denied on July 19, 2007 without prejudice. And, on February 20, 2007, Petitioner filed a Fed. R. Crim. P. 12(b)(3)(B) motion. On June 29, 2007, this motion to void judgment under 12(b)(3)(B) was denied as frivolous. Petitioner appealed the Court's June 29, 2007 Order which was summarily affirmed in Potts v. United States, 251 F. App'x 109 (3d Cir. 2007). On September 26, 2007, the Third Circuit Court of Appeals affrmed Petitioner's conviction and the sentence imposed by the District Court and granted his counsel's motion to withdraw. On November 4, 2007, Petitioner filed a motion for rehearing en banc and on January 7, 2008, the Third Circuit denied the petition for en banc rehearing. Petitioner motioned to stay of mandate and leave to file supplemental brief on January 13, 2008, which was denied September 11, 2008.

On March 25, 2008, Petitioner filed two pro se motions, one to arrest judgment and to set aside the verdict for failure to invoke the Court's jurisdiction of the charged offense, and for modification of sentencing, pursuant to Fed. R. Crim. P. 34(a)(2) and 18 U.S.C. § 3582(c)(2). The District Court denied the motion for lack of jurisdiction on September 19, 2008, and on October 3, 2008, Petitioner motioned the Court for reconsideration pursuant to Fed. R. Civ. P. 59(e). On October 6, 2008, the District Court denied reconsideration after which Petitioner appealed.

On October 22, 2008, the Third Circuit advised Petitioner that his appeal was subject to summary judgment, and on February 27, 2009, the Third Circuit held, "we will summarily affirm the orders of the District Court." The second of Petitioner's motions filed on March 25, 2008 to move the District Court to set aside the enhanced penalty of § 841(b)(1)(A) was denied on September 19, 2008 as legally frivolous.

On September 26, 2008, Petitioner filed a timely appeal and filed a brief to the Third Circuit on November 21, 2008. On March 5, 2009, the Third Circuit ...


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