United States District Court, M.D. Pennsylvania
RICHARD CAPUTO United States District Judge
Gibson, a federal inmate presently serving a sentence for
conspiracy to possess with intent to distribute heroin and
cocaine in violation of 21 U.S.C. § 846 at the
Petersburg Low Federal Correctional Institution in
Petersburg, Virginia, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. In his Petition,
Mr. Gibson, relying on Burrage v. United States, ___
U.S.___, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), challenged
his life sentence imposed by the United States District Court
for the District of Maryland claiming it to be “above
the statutory maximum.” (ECF No. 1, Pet.) By Memorandum
and Order of January 16, 2016, following a response by
Respondent, Mr. Gibson's Petition was dismissed.
Gibson v. Thomas, No. 3:CV-14-0820, 2016 WL 213618
(M.D. Pa. Jan. 19, 2016). The Court explained that Mr.
Gibson's Petition was subject to dismissal because he had
failed to demonstrate circumstances that his remedy under 28
U.S.C. § 2255 was inadequate or ineffective.
(Id.) Consideration was also given to Mr.
Gibson's supplemental request to raise a claim pursuant
to McFadden v. United States, ___ U.S.___, 135 S.Ct.
2298, 192 L.Ed.2d 260 (2015). Althoug h both cases cited by
Mr. Gibson were decided after his initial § 2255
petition, the Supreme Court of the United States made neither
one retroactively applicable to cases on collateral review.
The Court dismissed the Petition on the basis that the
Petitioner could not meet the requirements of the saving
clause announced in In re Dorsainvil, 119 F.3d 245,
261 (3d Cir. 1997).
before the Court is Mr. Gibson's motion for
reconsideration arguing the Court erred and overlooked
Persaud v. United States, ___ U.S.___, 134 S.Ct.
1023, 188 L.Ed.2d 117 (2014) when holding that he could not
challenge his sentencing error by way of § 2241
petition. (ECF No. 15.) For the reasons set forth below, Mr.
Gibson's motion for reconsideration will be denied.
motion for reconsideration under Rule 59(e) is used
“‘to correct manifest errors of law or fact or to
present newly discovered evidence.'” Lazaridis
v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)(quoting
Max's Seafood Café ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). A party
moving to alter or amend a judgment pursuant to Rule 59(e)
faces a difficult burden. The applicant for reconsideration
must show “at least one of the following grounds: (1)
an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct a
clear error of law or fact or to prevent manifest
injustice.” Schumann v. Astrazeneca Pharm.,
L.P., 769 F.3d 837, 848 (3d Cir. 2014) (quoting Max's
Seafood Café, 176 F.3d at 677). Mere
dissatisfaction with the Court's ruling is not a proper
basis for reconsideration. Progressive Cas. Ins. Co. v.
PNC Bank, N.A., 73 F.Supp.2d 485, 487 (E.D. Pa. 1999).
aside from rearguing the allegations of his Petition, Mr.
Gibson asserts that the Court erred by ruling that he could
not challenge his sentence via a § 2241 petition in
light of Persuad, supra. Petitioner is
mistaken that his Burrage or McFadden
challenge falls within the narrow definition of sentencing
claims that can be pursued via a § 2241 petition. In
Persuad, the Supreme Court granted certiorari and
vacated the judgment based on the position taken by the
Solicitor General in his brief for the United States.
Persaud v. United States, ___ U.S.___, 134 S.Ct.
1023, 188 L.Ed.2d 117 (2014). In his brief, the Solicitor
General argued, for the first time in the case, that a
petitioner should be permitted to argue, pursuant to §
2241, the imposition of an erroneous mandatory minimum
sentence claim based intervening case law that has been made
retroactive to cases on collateral review. See United
States v. Persaud, No. 13-6435, 2013 WL 7088877 (Dec.
20, 2013). That unique situation is not similarly presented
by Mr. Gibson. Firstly, in Persuad, the United
States Supreme Court did not adopt the Solicitor
General's position, thus it is not controlling authority.
Rather, the Supreme Court remanded the case to the circuit
court in light of the Solicitor General's brief.
Therefore, the Court could not have erred and therefore did
not err by not applying it. Secondly, Petitioner still has
not demonstrated that he is entitled to proceed under the
savings clause as the Supreme Court has not held that either
Burrage or McFadden is retroactively
applicable to cases on collateral review. However, the Third
Circuit Court of Appeals has confirmed that a challenge to a
conviction based on Burrage, which is an extension
of the Apprendi and Alleyne decisions, does
not fall into the limited exception where § 2255 is
inadequate or ineffective. Dixon v. Warden of FCI
Schuylkill, 647 F. App'x 62, 64 (3d Cir. 2016);
see also Upshaw v. Warden Lewisburg USP, 634 F.
App'x 357, 359 (3d Cir. 2016). In light of the foregoing,
Mr. Gibson has not established that his remedy under §
2255 is inadequate or ineffective.
Mr. Gibson identifies no newly discovered evidence or
manifest errors of law or fact within the Court's
dismissal order, his motion for reconsideration will be
appropriate order follows.
 Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Alleyne v. United States, ___
U.S.___, 133 S.Ct. 2151, 186 L.Ed.2d 314 ...