United States District Court, M.D. Pennsylvania
YVETTE KANE, District Judge.
Daniel Rodriguez, an inmate at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241, in which he named David J. Ebbert, Warden of USP-Lewisburg, as the Respondent. Doc. 1, Rodriguez's Petition. Rodriguez is presently serving a term of imprisonment of 272 months for firearms offenses and contends that the district court that sentenced him incorrectly calculated his guideline range. Id . The required filing fee has been paid. A response and traverse having been filed, the petition is ripe for disposition. For the reasons set forth below, the petition for writ of habeas corpus will be dismissed.
On August 5, 1994, a federal grand jury sitting in Southern District of Florida returned an indictment, charging Rodriguez with the following offenses: (1) assault on a federal judge in violation of 18 U.S.C. § 111 (Count I); use of a firearm during a crime of violence in violation of 18 U.S.C. §924 (Count II); and (3) two counts of being a felon in possession of a firearm (Counts III and IV). Doc. 8-2, Attachment to Response to Petition, at 1-2. On January 12, 1995, following a jury trial in the United States District Court for the Southern District of Florida, Rodriguez was found guilty of all of the charges except the charge of assault on a federal judge (Count I). Id., at 5. On February 1, 1995, Rodriguez filed a motion for a new trial and/or for judgment of acquittal. Id., at 5. On March 23, 1995, the district court issued a memorandum granting the motion with respect to Count II of the indictment and directed the parties to submit a proposed order effectuating that dismissal. Id., at 6.
Rodriguez was found guilty, as stated above, under 18 U.S.C. § 922(g)(two counts) and he also had the requisite number and type of prior convictions to trigger the applicability of the Armed Career Criminal Act found at 18 U.S.C. § 924(e). Doc. 8-1, Attachments to Response to Petition, at 20. A presentence report was prepared utilizing the version of the United States Sentencing Guidelines effective on November 1, 1994, and the sentencing range was determined to be 262 to 327 months of imprisonment. Id., at 17; Doc. 1, Petition, at 11 & Attachments thereto, at 23-24 & 26-28. The presentence report was dated February 28, 1995, and objections were filed on April 5, 1995, to that report. Doc. 8-1, Attachments to Response to Petition, at 18 n.4; Doc. 8-2, Attachment to Response to Petition, at 6. The objections were overruled and Rodriguez was sentenced on April 10, 1995, to a term of imprisonment of 272 months on each of Counts III and IV of the indictment to be served concurrently and to be followed by 5 years of supervised release. Id.
During the sentencing hearing, Judge Propst explained that he was imposing a sentence 10 months above the minimum of the guideline range because of Rodriguez's perjury at the trial. Doc. 1, Petition, Attachments thereto, at 27-28.
The judgment of sentenced docketed on April 21, 1995 further indicates that Rodriguez was found not guilty of Count 1 of the indictment and that Count 2 was dismissed. Doc. 8-2, Attachment to Response to Petition, at 6.
On April 12, 1995, Rodriguez filed an appeal to the Court of Appeals for the 11th Circuit. Id . On December 29, 1996, the Court of Appeals affirmed Rodriguez's judgment of conviction and sentence. Id.
On December 29, 2003, Rodriguez filed in the United States District Court for the Southern District of Florida a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Id. at 7. The case was assigned to Judge Jose E. Martinez and on June 30, 2004, Rodriguez's motion was dismissed. Id . Rodriguez did not appeal that dismissal. Id . On April 26, 2005, Rodriguez filed a second § 2255 motion which was dismissed by Judge Martinez on July 21, 2006. Id . Rodriguez again did not appeal that dismissal. Id.
On February 13, 2009, Rodriguez filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) in which he raised an issue similar to the one presently raised in the instant § 2241 habeas petition. Id . On March 16, 2009, Judge Propst denied that motion. Id . In so doing Judge Propst stated the following regarding his calculation of the guidelines:
The defendant has focused on the language... which says that being a felon in possession of a firearm is not a "crime of violence." He uses that language to aver that the court improperly applied U.S.S.G. §4B1.4(b)(3)(A) to find that he had a base offense level of 34. In so doing, the defendant misapprehends the reference in that subsection to "crime of violence, " apparently believing that the court construed that the counts of conviction, i.e. the felon in possession of a firearm counts, were crimes of violence. That is not the finding made by the court.
It was not the counts of conviction that constituted the crimes of violence; rather, it was the use of which the defendant put the firearm which he possessed. The court specifically found:
that the firearms, at least one or more of them, was used in a crime of violence and that the manner of that use was, in effect, striking [the victim] on the side of the head with it. Now, that, to me, would be a crime of violence and to the extent that the Court is ...