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Putten v. Ebbert

United States District Court, M.D. Pennsylvania

January 25, 2017

CARL VAN PUTTEN, Petitioner
v.
WARDEN EBBERT, Respondent

          MEMORANDUM

          Matthew W. Brann United States District Judge

         Background

         Carl 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 Court.

         Petitioner 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.[1] He also indicates that he previously filed an unsuccessful petition for collateral relief pursuant to 28 U.S.C. § 2255.

         Petitioner 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.

         A 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.[2]See Doc. 2, p. 13 . As relief, Petitioner seeks his immediate release.

         Discussion

         Habeas 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. 1979).

         Rule 4 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).

         Second or Successive

         As 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.[3]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.

         Title 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 ...

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