United States District Court, W.D. Pennsylvania
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, Magistrate Judge.
It is respectfully recommended that the petition for a writ of habeas corpus be dismissed for lack of subject matter jurisdiction.
Petitioner, Diep Van Nguyen, is a federal inmate incarcerated at the Federal Correctional Institution at McKean. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [ECF No. 5] in which he challenges the legality of the sentence imposed upon him in 2008 by the U.S. District Court for the District of Massachusetts.
A. Relevant Background
On February 22, 2008, Petitioner pleaded guilty before the U.S. District Court for the District of Massachusetts (hereinafter the "sentencing court") in the case of United States v. Van Nguyen, No. 07-cr-10050 to the following three counts: (1) Distribution of methylenedioxymethamphetamine, commonly known as "MDMA" and/or "ecstasy, " in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B)(viii); (2) Conspiracy to Distribute and Possess with Intent to Distribute MDMA, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(B)(viii); and, (3) Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2).
The sentencing court sentenced Petitioner on September 24, 2008. The Armed Career Criminal Act ("ACCA") imposes a 15-year mandatory minimum sentence on a person convicted of being a felon in possession of a firearm if that person has three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The ACCA defines a "violent felony, " in relevant part, as a crime punishable by imprisonment for a term exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another[.]" 18 U.S.C. § 924(e)(2)(B)(i). Because Petitioner had been convicted of three predicate offenses, he qualified for the enhancement under the ACCA. Two of those predicate offenses were state convictions for assault/battery and resisting arrest. The court sentenced him to a term of 226 months' imprisonment.
Petitioner did not appeal his judgment of sentence. On or around December 9, 2013, he filed in the sentencing court his first motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Relying on the U.S. Supreme Court's recent decision in Alleyne v. United States, ___ U.S. ___ , 133 S.Ct. 2151 (2013), Petitioner argues in that motion that the court violated his Sixth Amendment right to a jury trial by imposing a mandatory minimum sentence of 15 years pursuant to 18 U.S.C. § 924(e)(1), based on facts neither pled to by him, nor found by a jury beyond a reasonable doubt. That motion is pending before the sentencing court.
In the meantime, about a month earlier Petitioner, who is incarcerated within the territorial boundaries of the Western District of Pennsylvania, filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [ECF No. 5. See also Memorandum, ECF No. 6]. He alleges that his state convictions for assault/battery and resisting arrest do not qualify as crimes of violence under the ACCA. In support, he relies upon Begay v. United States , 553 U.S. 137 (2008), which the Supreme Court decided approximately five months before the sentencing court imposed his sentence. In Begay, the Court held that a DUI conviction under New Mexico law did not fall within the definition of a "violent felony" under the ACCA since violent felonies were limited to offenses which "typically involve purposeful, violent, and aggressive conduct." 553 U.S. at 144-45 (citations omitted). Petitioner also relies upon Johnson v. United States , 559 U.S. 133 (2010). In that case, the Supreme Court interpreted the phrase "physical force" in the ACCA to mean "violent force - that is, force capable of causing physical pain or injury to another person." Johnson , 559 U.S. at 140.
Respondent has filed his Answer [ECF No. 11] in which he contends that the petition must be dismissed for lack of subject matter jurisdiction. Petitioner did not file a Reply.
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]" Cardona v. Bledsoe , 681 F.3d 533, 535 (3d Cir. 2012) (quoting Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994)). "Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer federal jurisdiction over habeas petitions filed by federal inmates." Id . "The core' habeas corpus action is a prisoner challenging the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid." McGee v. Martinez , 627 F.3d 933, 935 (3d Cir. 2010). That type of action is brought in the district court that tried and sentenced the prisoner by way of a motion filed under 28 U.S.C. § 2255, which permits a federal prisoner to challenge his conviction or 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 sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" In contrast, § 2241 "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence, " McGee , 627 F.3d at 935, such as, for example, the way in which the Bureau of Prisons is computing his sentence. See, e.g., Barden v. Keohane , 921 F.2d 476, 478-79 (3d Cir. 1990). A habeas corpus action pursuant to § 2241 must be brought in the custodial court - the federal district court in the district the prisoner is incarcerated - not the district court where the prisoner was tried and sentenced.
Importantly, § 2255 prohibits district courts from entertaining a § 2241 habeas corpus petition filed by a federal prisoner who is raising the types of claims that must be raised in a § 2255 motion unless it "appears that the remedy by [§ 2255 motion] is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). This provision of ...