United States District Court, M.D. Pennsylvania
RICHARD CAPUTO United States District Judge
Gene Eaton, a federal prisoner appearing pro se,
filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 while housed at FCI-Schuylkill in
Minersville, Pennsylvania. Mr. Eaton argues that following
Johnson v. United States, __U.S.__, 135 S.Ct. 2551,
192 L.Ed.2d 569 (2015),  his prior conviction for conveying a
weapon inside a federal penitentiary no longer qualifies as a
crime of violence predicate offense for enhancing his
sentence under the Armed Career Criminal Act (ACCA). He seeks
to be resentenced without ACCA enhancement.
reasons that follow, Mr. Eaton's Petition will be
dismissed for lack of jurisdiction.
Background and Procedural History 
December 18, 1998, Mr. Eaton was convicted by a jury on two
counts of armed bank robbery in violation of 18 U.S.C. §
2113, one count of carrying a firearm during and in relation
to a crime of violence in violation of 18 U.S.C. §
924(c), one count of possessing a firearm after a former
felony conviction in violation of 18 U.S.C. § 922(g),
three counts of obstruction of justice in violation of 18 U
.S.C. § 1503, and two counts of tampering with a witness
in violation of 18 U.S.C. § 1512(b). United States
v. Eaton, 20 F.App'x 763, 766 (10th Cir. 2001). The
government filed a motion to enhance the penalties against
htm based on prior convictions under the Three Strikes
Statute, 18 U.S.C. § 3559(c) and the ACCA. (ECF No. 1,
Pet., p. 5.) During Mr. Eaton's March 24, 1999,
sentencing hearing the court noted "two prior armed
robbery convictions" and a "1977 conveyance of a
weapon inside a federal prison." (Id., pp. 6 -
7.) Relying on these three convictions the sentencing court
that for the purpose of 18 U.S. Code Section 2559, the
defendant has at least two prior convictions for serious
violent felonies, that he was convicted for a serious violent
felony, that being bank robbery in the instant case, and then
the robbery in 1993 with the use of a firearm and the
conviction in 1972 for bank robbery with a firearm, and that
these convictions were separated in time, obviously, one
being in '72 and '83, that satisfying Part B of the
mandatory life imprisonment statute.
(Id., p. 6.) The sentencing court also found Mr.
Eaton subject to the sentencing enhancement under the ACCA
based on his conviction of the three convictions:
the defendant was convicted in 1963 of the two armed
robberies, and, then, likewise, in 1973 of the conveyance of
the weapon charge, and that all of these qualify under the
Armed Career Criminal Act to face the enhanced penalty under
18 U.S. Code Section 924(e).
(Id., p. 7.) Based on these findings, Mr. Eaton was
"committed to the custody of the Bureau of Prisons to be
imprisoned for a term of life. The sentencing court explained
This consists of a sentence of life as to Counts 1 and 4; 180
months as to Count 3; 120 months as to Counts 5, 6, 7, 8, and
9. Counts 1, 3, 4, 5, 6, 7, 8, and 9 shall run concurrently.
A term of 60 months is ordered on Count 2, which shall not
run concurrently with any other term of confinement imposed.
(Id., p. 8.) The United States Court of Appeals for
the Tenth Circuit affirmed Mr. Easton's conviction and
sentence on March 21, 2000. See 208 F.3d 227 (10th
Cir. 2000). In 2000, Mr. Eaton filed his first 28 U.S.C.
§ 2255 motion to vacate, set aside or correct his
sentence. The sentencing court denied the § 2255 motion
and the United States v. Eaton, 20 F.App'x 763
(10th Cir. 2001).
the pendency of this Petition, Mr. Eaton filed a filed a
motion under 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence with the sentencing court based on
Johnson, supra. United States v. Eaton,
5:98-cr-0183-R (W.D. Okla), Motion to Vacate (2255), ECF No.
285, Apr. 25, 2016. On May 6, 2016, the sentencing court
dismissed the Petition for lack of jurisdiction noting that
Mr. Eaton did not obtain permission to file a successive
§ 2255 motion without first seeking leave of the Then
Circuit Court of Appeals pursuant to 28 U.S.C. §
2255(h). (Id., Order, ECF No. 288, May 2, 2016.) On
June 22, 2016, the United States Court of Appeals for the
Tenth Circuit denied Mr. Eaton's request for
authorization under 28 U.S.C. § 2255(h) to file
a successive § 2255 motion based on
Johnson after finding "he was actually
sentenced under the Three Strikes Statute, 18 U.S.C. §
3559(c), " thus "Johnson does not provide
Mr. Eaton with a basis for authorization under §
2255(h)." In re: Eaton, No. 16-6166 (10th Cir.
Jun. 22, 2016).