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Hazel v. Perdue

United States District Court, M.D. Pennsylvania

May 22, 2017

WILLIAM HAZEL, Petitioner
v.
WARDEN RUSSELL PERDUE, Respondent

          MEMORANDUM

          William W. Caldwell United States District Judge.

         I. Introduction

         The pro se petitioner, William Hazel, while he was housed at the Schuylkill Federal Correctional Institution, in Minersville, Pennsylvania, filed this petition for a writ of habeas corpus, cognizable under 28 U.S.C. § 2241.[1] Hazel is challenging his 1993 convictions in the United States District Court for the Eastern District of Virginia for possession, distribution, and conspiracy to distribute heroin and cocaine. Petitioner received a sentence of life imprisonment, which was later reduced to an aggregate term of 405 months.

         Hazel claims his conviction and sentence are unconstitutional because the drug quantity that contributed to his sentence was not charged in the indictment nor submitted to the jury. In support, he relies on the following Supreme Court cases that were decided after his conviction: 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 (2013); and Burrage v. United States, U.S., 134 S.Ct. 881, 187 L.Ed.3d 715 (2014). (ECF No. 1, p. 7).

         Following our preliminary review of the Petition, it will be dismissed without prejudice for lack of jurisdiction.[2]

         II. Background

         In September 1991, Hazel and four codefendants were named “in a fifty-count indictment that charged conspiracy and various substantive counts of distribution of heroin, cocaine, and cocaine base in violation of 21 U.S.C. §§ 846, 841 and 18 U.S.C. § 1952.” United States v. Hazel, 1994 WL 642198 at *1 (4th Cir. 1994) (unpublished disposition). After a jury trial, Hazel was convicted on eleven counts, including the conspiracy count. (Doc. 1, 2241 petition at p. 3). He took a direct appeal to the United States Court of Appeals for the Fourth Circuit, which affirmed the conviction and sentence. Hazel, supra. The Supreme Court denied certiorari. See Hazel v. United States, 514 U.S. 1087, 115 S.Ct. 1804, 131 L.Ed.2d 729 (1995).

         In 2001, Hazel filed a motion in the sentencing court to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. “In that motion, Hazel argued that, inter alia, the Court should grant him relief because the jury failed to find the precise amount of drugs attributable to him.” United States v. Hazel, No. 92-CR-163, 2014 WL 1089736, at *1 n.1 (E.D. Va. Mar. 19, 2014). The trial court denied the motion. Id., 2014 WL 1089736, at *1. The Fourth Circuit denied Hazel's request for a certificate of appealability. See United States v. Hazel, 57 F.App'x 205 (4th Cir. 2003)(nonprecedential). In 2006, the Fourth Circuit also affirmed the sentencing court's dismissal of a § 2241 petition for lack of jurisdiction. United States v. Hazel, 204 F.App'x 256, 257 (4th Cir. 2006) (nonprecedential).

         In 2007, Hazel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this court, challenging his conviction on the basis that the drug quantity that contributed to his sentence was not charged in the indictment or submitted to the jury. Hazel v. Williamson, No. 07-CV-0569, 2007 WL 1959303 (M.D. Pa. 2007)(Caldwell, J.). That petition was based on cases decided by the United States Supreme Court after his conviction: United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We denied the petition for lack of jurisdiction as he failed to demonstrate that a remedy by way of a Section 2255 motion was inadequate or ineffective to test the legality of his detention. Hazel, 2007 WL 1959303, at *1.

         In 2013, Hazel filed a Rule 60(b) motion with the sentencing court, seeking to reopen his § 2255 motion. United States v. Hazel, No. 92-CR-163 (E.D. Va. Oct. 9, 2013)(ECF No. 90). In March 2014, the court construed the motion as a second or successive motion for relief pursuant to 28 U.S.C. § 2255 and dismissed it for lack of jurisdiction. United States v. Hazel, No. 92-CR-163, 2014 WL 1089736, at *2 (E.D. Va. Mar. 19, 2014). In 2015, the Fourth Circuit affirmed. United States v. Hazel, 618 F.App'x 756, 757 (4th Cir. 2015)(nonprecedential).

         In 2016, Hazel filed a motion under 28 U.S.C. § 2244 for an order authorizing the sentencing court to consider a second or successive application for relief under § 2255. Hazel v. United States, C.A. No. 16-3114, ECF No. 2 (4th Cir.). His motion was based on new case law previously unavailable. (Id., p. 4). Specifically Hazel relied upon the Supreme Court's decisions in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and Peugh v. United States, __ U.S. __, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). (Id., ECF No. 2-2, Memorandum in Supp. of Pet.) On November 28, 2016, the Fourth Circuit denied the motion. In re: William A. Hazel, a/k/a Beanie, No. 16-3114 (4th Cir. Nov. 28, 2016) (slip op.)

         On November 21, 2016, Petitioner filed a second § 2255 motion with the sentencing court. United States v. Hazel, No. 92-CR-163 (E.D. Va. Nov. 21, 2016)(ECF No. 131). On December 7, 2016, the court denied the motion as a successive, unauthorized § 2255 motion. United States v. Hazel, (Id., ECF No. 134).

         On January 26, 2017, Hazel filed his current § 2241 petition and supporting memorandum. (ECF Nos. 1 and 2). As noted, Hazel challenges his conviction and sentence because he was sentenced under 21 U.S.C. § 841(b)(1)(A) where neither the indictment, nor the jury, specified the quantity of drugs attributed to him in the drug conspiracy. In support, Hazel relies upon the following Supreme Court cases that were decided after his conviction: 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 (2013); and Burrage v. ...


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