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Pearson v. Ebbert

United States District Court, M.D. Pennsylvania

February 10, 2015

WARDEN EBBERT, Respondent.


WILLIAM J. NEALON, District Judge.

On October 15, 2014, Petitioner, Roderick Corlion Pearson, an inmate currently incarcerated at the Canaan United States Penitentiary ("USP-Canaan") in Waymart, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). He challenges a sentence from the United States District Court for the Northern District of Alabama. (Id.). For the reasons set forth below, the petition will be dismissed for lack of jurisdiction.


On May 7, 2007, Petitioner pled guilty to bank robbery and related firearms charges for a robbery that occurred on January 25, 2007. See United States v. Pearson, 2:07-cr-0072 (N.D. Al. filed February 28, 2007); (Doc. 1) (Count 3-18 U.S.C. § 2113(a), (d); Count 4-18 U.S.C. § 924(c)(1)(A)(ii); Count 5-18 U.S.C. § 922(g)(1)). He proceeded to a jury trial on the remaining charges of bank robbery and brandishing a firearm during and in relation to a crime of violence regarding a robbery that took place on January 12, 2007. Id. (Count 1-18 U.S.C. § 2113(a), (d); Count 2-18 U.S.C. § 924(c)(1)(A)(ii)). The jury returned a guilty verdict on May 10, 2007. Id. On August 21, 2007, Petitioner was sentenced to a total of five hundred sixty-four (564) months for the two (2) separate bank robberies and firearm charges. Id.

On direct appeal, he claimed, inter alia, that "his prior conviction [for discharging a firearm into an unoccupied vehicle] should not have been considered a crime of violence for purposes of U.S.S.G. § 4B1.2(a), and that his sentence was unreasonable under 18 U.S.C. § 3553(a)." United States v. Pearson, 308 Fed.Appx. 375, 376-79 (11th Cir. 2009). His conviction and sentence were affirmed on January 22, 2009. Id.; (Doc. 1, p. 2).

Petitioner filed a motion to vacate sentence under 28 U.S.C. § 2255 in the trial court on November 23, 2009. See Pearson, 2:07-cr-0072 at (Doc. 57); Pearson v. United States, 2:09-cv-8041 (N.D. Al. filed November 23, 2009). He claimed, inter alia, that the penalty provisions in 18 U.S.C. § 924(e)(1) do not apply to his offense because he is "actually, factually, and legally innocent of three previous predicate offenses that could legally be used as strikes to make Petitioner and [sic] Armed Career Criminal." Pearson, 2:09-cv-8041 at (Doc. 1, p. 6(a)). The matter was referred to a magistrate judge, who issued a report and recommendation ("R&R") recommending that the motion be denied. Id. at (Doc. 13). On August 30, 2011, the R&R was adopted and the section 2255 motion was denied. Id. at (Doc. 16). Petitioner filed a notice of appeal and a motion for a certificate of appealability, but they were dismissed for his failure to pay the filing fee. Id. at (Docs. 23, 28).

In 2013, prior to his transfer to USP-Canaan, Petitioner filed 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 Louisiana, claiming that the Supreme Court's decision in United States v. O'Brien, 560 U.S. 218 (2010), established that he may have been convicted of a non-existent offense. See Pearson v. Carvajah, 2013 U.S. Dist. LEXIS 160330 (W.D. La. 2013). The Court concluded that Petitioner did not meet his burden of proving that 28 U.S.C. § 2255 would be inadequate or ineffective to test the legality of his conviction and, accordingly, dismissed his petition. See id.

On October 15, 2014, Petitioner filed the instant petition pursuant to 28 U.S.C. § 2241, alleging that his sentence for 18 U.S.C. § 922(g) exceeds the statutory maximum. (Doc. 1, p. 3). He asserts that the savings clause of section 2255 applies to his petition in light of a retroactive Supreme Court decision establishing that he may have been convicted of a non-existent offense. (Id. at p. 6). Specifically, Petitioner argues that the Eleventh Circuit Court of Appeals has ruled that Begay[1] is retroactive to cases on collateral review. (Doc. 1, memorandum pp. 1, 5-6), citing Mackey v. Warden, FCC Coleman - Medium, 739 F.3d 657, 660 (11th Cir. 2014); Bryant v. Warden, 738 F.3d 1253 (11th Cir. 2013). He contends that his prior offense of conspiracy to commit robbery is not a "violent felony" under the Armed Career Criminal Act ("ACCA"). (Id.), citing United States v. Whitson, 597 F.3d 1218, 1223 (11th Cir. 2010) ("conclud[ing] that non-overt act conspiracy is not a section 4B1.1 crime of violence'"). Petitioner also refers to allegedly contradictory statements in his presentence report regarding his prior history. (Id. at memorandum pp. 4-6).

Petitioner further argues that he is actually innocent of the sentencing enhancement at 18 U.S.C. § 924(e). (Id. at memorandum p. 3). He asserts that without the enhancement, the statutory maximum for his conviction of 18 U.S.C. § 922(g) is ten (10) years, but that he was sentenced to one hundred eighty (180) months. (Id. at memorandum pp. 3-4). Petitioner contends that the miscarriage of justice exception applies because he was sentenced beyond the maximum penalty allowed by law. (Doc. 1, memorandum pp. 6-7), citing Spencer v. United States, 727 F.3d 1076, 1087 (11th Cir. 2013); Whiteside v. United States, 748 F.3d 541, 550 (4th Cir. 2014).


Motions filed under 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution or laws of the United States or are otherwise subject to collateral attack. Davis v. United States, 417 U.S. 333, 343 (1974); O'Kereke v. United States, 307 F.3d 117, 122-23 (3d Cir. 2002). In general, there are four (4) grounds for relief under section 2255, including a sentence that exceeds the maximum allowed by law. See R. Governing § 2255 Cases 1(a). More specifically, the courts have determined that section 2255 is the appropriate means for a federal prisoner to dispute a career offender classification based on the decision in Begay. See United States v. Kenney, 391 Fed.Appx. 169, 171-72 (3d Cir. 2010) (reclassifying the petitioner's motion, which challenged his sentence based on the holding in Begay, as a successive section 2255 motion and concluding that he could not meet the statutory requirements for filing second or successive section 2255 motions); Pryce v. Scism, 2011 U.S. Dist. LEXIS 1171 (M.D. Pa. 2011) (Jones, J.).

A prisoner's challenge to the legality of his sentence under 28 U.S.C. § 2255 must be made in the sentencing court. Hendricks v. President United States, 575 Fed.Appx. 19, 20 (3d Cir. 2014). But, a "second or successive motion must [first] be certified as provided in section 2244 [28 U.S.C. § 2244] by a panel of the appropriate court of appeals...." 28 U.S.C. § 2255(h);[2] 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."). It is the court of appeals, not the district court, that must certify a petitioner's right to file a second or successive section 2255 motion. See 28 U.S.C. § 2255(h); Selby v. Scism, 2010 U.S. Dist. LEXIS 100060, *7-9 (M.D. Pa. 2010) (Munley, J.). Where a petitioner fails to obtain prior authorization from the court of appeals, the district court lacks jurisdiction over a second or successive section 2255 motion. See Pelullo v. United States, 487 Fed.Appx. 1, 2 n.2 (3d Cir. 2012); United States v. Rodriguez, 327 Fed.Appx. 327, 329 (3d Cir. 2009) (holding that the "district courts lack jurisdiction over second or successive § 2255 motions without proper authorization from a panel of the court of appeals"); Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002), cert. denied 540 U.S. 826 (2003).

There is a "narrow exception" that allows a federal prisoner to file a petition pursuant to 28 U.S.C. § 2241 in the court of confinement where the remedy available under section 2255 is inadequate or ineffective to test the legality of detention. See 28 U.S.C. § 2255(e); Soler v. Martinez, 435 Fed.Appx. 69, 70 (3d Cir. 2011) (quoting Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002)); O'Kereke, 307 F.3d at 120. "A motion under § 2255 is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his claim of wrongful detention.'" Yuzary v. Samuels, 269 Fed.Appx. 200, 201 (3d Cir. 2008) (quoting Cradle, 290 F.3d at 539). "Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping[3] requirements of the amended § 2255." Cradle, 290 F.3d at 539; In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Cradle, 290 F.3d at 538; see also Brown v. Mendez, 167 F.Supp.2d 723, 727 (M.D. Pa. 2001) (Vanaskie, J.) (explaining that section 2241 should not be used as a way of evading the gatekeeping requirements of section 2255). If a petitioner improperly challenges a federal conviction or sentence under 28 U.S.C. § 2241, the petition must be dismissed for lack of jurisdiction. See Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).

Here, Petitioner cannot establish that the remedy under section 2255 is inadequate or ineffective because he does not allege that he was convicted of conduct that is now non-criminal. See Scott v. Shartle, 574 Fed.Appx. 152, 155 (3d Cir. 2014) (holding that a petitioner "challenging his career offender designation and [] not claiming that he is now innocent of the predicate offense, [] does not fall within the safety valve' exception created in In re Dorsainvil and cannot proceed under § 2241"); United States v. Kenney, 391 F.Appx. 169, 172 (3d Cir. 2010) ("Section 2241 is not available for intervening changes in the sentencing law."); O'Kereke v. United States, 307 F.3d 117, 120-21 (3d Cir. 2002). As recognized in In re Dorsainvil, a federal prisoner can pursue relief under section 2241 only where a subsequent statutory interpretation reveals that the prisoner's conduct is not criminal so as to avoid a complete miscarriage of justice. Dorsainvil, 119 F.3d at 251. "Thus, where an intervening change in the law relates to sentencing, and does not render the crime for which a petitioner was convicted noncriminal, ... the exception in In re Dorsainvil is not available to a petitioner to allow him to pursue relief under § 2241." Jackson v. Scism, 2011 U.S. Dist. LEXIS 126299, *10 (M.D. Pa. 2011) (Jones, J.). Specifically, a petitioner challenging his sentence in light of the decision in Begay is "claiming legal insufficiency-that he did not meet the legal definition of a career offender-not actual innocence [and] cannot satisfy the miscarriage of justice standard." Kenney, 391 Fed.Appx. at 172 (concluding that although habeas jurisprudence allows the courts to hear a successive petition to avoid a miscarriage of justice, the petitioner must make a "strong showing of actual innocence"); Pryce, 2011 U.S. Dist. LEXIS 1171 ...

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