United States District Court, M.D. Pennsylvania
Matthew W. Brann United States District Judge
Van Putten, an inmate presently confined at the United States
Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg) filed
this pro se habeas corpus petition pursuant to 28
U.S.C. § 2241. Named as Respondent is USP-Lewisburg
Warden D. Ebbert. Petitioner has also filed an in forma
pauperis application (Doc. 3) which will be granted for
the sole purpose of the filing of this action with this
states that he was convicted of murder while engaged in a
narcotics conspiracy following a jury trial in the United
States District Court for the Southern District of New York.
On March 29, 2009, Van Putten was resentenced to a term of
life imprisonment. See Doc. 1, ¶ 4. Following a
direct appeal, Petitioner acknowledges that his conviction
was affirmed by the United States Court of Appeals for the
Second Circuit. He also indicates that he previously filed
an unsuccessful petition for collateral relief pursuant to 28
U.S.C. § 2255.
also filed an earlier § 2241 action with this Court
which was dismissed for lack of jurisdiction on May 12, 2016.
See Van Putten v. Ebbert, Civil No. 4:CV-16-647. By
Order dated October 31, 2016, Petitioner's motion for
leave to file a successive § 2255 motion was denied by
the Second Circuit. See Doc. 2, p. 33.
supporting memorandum accompanying the Petitioner's
pending action asserts that he should be permitted to file a
successive habeas petition because his § 2255 remedy is
inadequate or ineffective. Van Putten generally contends that
he is entitled to relief on the grounds that his sentence was
excessive under the standards developed in Alleyne v.
United States, 570 U.S.___, 133 S.Ct. 2151 (2013) and
Montgomery v. Louisiana, __ U.S.___, 136 S.Ct. 718
(2016) . Alleyne held that any fact that increases
the mandatory minimum sentence is an element which must be
presented to the jury and proven beyond a reasonable doubt.
Petitioner also argues that because Alleyne defines
a substantive right it should be applied retroactively to
cases on collateral review.See Doc. 2, p. 13 . As
relief, Petitioner seeks his immediate release.
corpus petitions are subject to summary dismissal pursuant to
Rule 4 (“Preliminary Review”) of the Rules
Governing Section 2254 Cases in the United States District
Courts, 28 U.S.C. foll. § 2254 (2004). See,
e.g., Mutope v. Pennsylvania Board of Probation
and Parole, 2007 WL 846559 *2 (M.D. Pa. March 19,
2007)(Kosik, J.). The provisions of Rule 4 are applicable to
§ 2241 petitions under Rule 1(b)). See, e.g.,
Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa.
provides in pertinent part: “If it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
petitioner.” A petition may be dismissed without review
of an answer “when the petition is frivolous, or
obviously lacking in merit, or where. . . the necessary facts
can be determined from the petition itself. . . .”
Gorko v. Holt, 2005 WL 1138479 *1(M.D. Pa. May 13,
2005)(McClure, J.)(quoting Allen v. Perini, 424 F.2d
134, 141 (6th Cir. 1970).
previously discussed, Petitioner filed an earlier § 2241
action with this Court which also challenged the validity of
his conviction and sentence which transpired in the Southern
District of New York. The Alleyne based arguments
raised in Van Putten's pending petition were included in
his earlier habeas corpus action which was previously
dismissed by this Court for lack of
jurisdiction.Thereafter, Petitioner filed an
unsuccessful petition with the Second Circuit seeking leave
to file a second or successive § 2255 action. His
petition, which included his present Alleyne /
Montgomery based claims, was denied.
28 U.S.C. § 2244(a) and Rule 9(b) of the Rules Governing
Section 2254 Cases in the United States District Courts, 28
U.S.C. foll. § 2254 (1977), set forth the pertinent
authority for determination as to whether second or
successive habeas corpus petitions may be reviewed by federal
district courts. See Graham v. Warden,
FCI-Allenwood, 348 Fed.Appx. 706 (3d Cir. 2009)(§
2244(a) bars second or successive challenges to the legality
of detention). Rule 9(b) of the Habeas Corpus Rules provides:
Before presenting a second or successive petition, the
petitioner must obtain an order from the appropriate court of
appeals authorizing the district court to consider the
petition as ...