Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shaw v. Baltazar

United States District Court, M.D. Pennsylvania

June 23, 2017

NORMAN SHAW, JR., Petitioner
v.
WARDEN BALTAZAR, Respondent

          MEMORANDUM

          JAMES M. MUNLEY JUDGE

         Presently before the court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), filed on June 1, 2017, by Norman Shaw, Jr. ("Shaw"), a federal inmate confined at the United States Penitentiary at Canaan ("USP-Canaan"), Pennsylvania. Shaw seeks to proceed in forma pauperis. (Doc. 4). The Court has conducted preliminary review and, for the reasons set forth below, dismissal of the petition is warranted. See R. GOVERNING § 2254 CASES R. 4, 1(b).[1]

         I. Background

         The following background is extracted from disposition of an appeal of the denial of Shaw's motion to correct restitution filed in the United States Court of Appeals for the Tenth Circuit:

In 1996, Mr. Shaw robbed a bank in Alaska. He pleaded guilty and was sentenced to serve 41 months in prison, followed by supervised release for three years. He was ordered to pay restitution in the amount of $2, 407. United States v. Shaw, No. A96-CR-32-JKS (D.Alaska), doc. 47 (amended judgment). On September 26, 2002, jurisdiction over his supervised release was transferred to the Western District of Missouri. Id., doc. 73.
In July 2003, the District Court for the Western District of Missouri revoked Mr. Shaw's supervised release and sentenced him to seven months' incarceration. United States v. Shaw, No. 02-CR-00203-NKL-1 (W.Dist.Mo.), doc. 17. As part of its judgment, it again ordered him to pay the restitution of $2, 407 due under his District of Alaska conviction. See id. No further term of supervised release was ordered. It appears that Mr. Shaw completed his sentence of incarceration on this conviction and was released. But he did not finish paying his restitution.
In June 2005, Mr. Shaw robbed a bank in Kansas City, Kansas. This resulted in the filing of the current case, No. 05-CR-20073, in the District of Kansas. He pleaded guilty and was sentenced to a prison term of 165 months, to be followed by a term of supervised release of three years. He was also ordered to pay restitution of $700 to Bank Midwest, the victim of his latest bank robbery. The prior restitution order from Alaska/Missouri was not made part of this judgment.
Mr. Shaw later moved under 28 U.S.C. § 2255 to vacate the judgment in No. 05-CR-20073. After the district court denied his motion, he appealed. His appellate issues concerned his attorney's alleged failure to file a notice of appeal and had nothing specifically to do with restitution. This court denied him a certificate of appealability (COA), holding that the appeal fell within the scope of his appeal waiver. United States v. Shaw, 292 Fed.Appx. 728, 730-31 (10thCir.2008).

United States v. Shaw. 508 F.App'x 769, 770 (10th Cir. 2013). The Tenth Circuit determined that the district court lacked jurisdiction over the motion for restitution and remanded with instructions that the district court dismiss the motion. (Id. at 773).

         According to his petition, Shaw sought relief via 28 U.S.C. § 2255, in November 2007. (Doc. 1, p. 4). On December 29, 2015, he sought permission to file a second or successive § 2255 petition with the Tenth Circuit, which was granted on May 6, 2016. (Id.) Shaw then filed a second or successive 28 U.S.C. § 2255 motion on or about June 20, 2016, in the United States District Court for the District of Kansas claiming that the residual clause of the Armed Career Offender is void, vague and unconstitutional under Johnson v. U.S., 135 S.Ct. 2551 (2015). United States v. Shaw, No. CR 05-20073-CM, 2017 WL 2191345, at *1 (D. Kan. May 17, 2017). The motion was denied, hi He sought reconsideration of the denial. On May 17, 2017, the sentencing court construed the motion for reconsideration as a second or successive petition. Id. The sentencing court recognized that the Supreme Court held in Beckles v. United States, 137 S.Ct. 886, 890 (2017), that the advisory sentencing guidelines are not subject to vagueness challenges under the due process clause, and dismissed the matter without prejudice to Shaw's right to seek proper authorization in the United States Court of Appeals for the Tenth Circuit Court to file a second or successive petition. Id. at 2.

         It appears that, rather than seeking relief in the Tenth Circuit, Shaw filed the present § 2241 petition in this court. In citing Johnson v. U.S.A., 135 S.Ct. 2551 (2015), Shaw again argues that "[t]he Residual Clause in the definition of 'violent felony' under the Armed Career Criminal Act is unconstitutionally vague." (Doc. 1, p. 6). He also challenges his "Base Score of his Custody Classification" as unconstitutional. (Id. at 7). He cites to Johnson and case law emanating from the United States Court of Appeals for the Tenth Circuit. (Id.) He is seeking elimination of the "unconstitutional force claim and residual clause from [his] current sentence which was enhanced by the District of Kansas by the now void, vague ACCA residual clause. . .", and a correction of his custody classification. (Doc.l, p. 8).

         II. Discussion

         Challenges to the legality of federal convictions or sentences that are allegedly in violation of the Constitution may generally be brought only in the district of sentencing pursuant to 28 U.S.C. § 2255. Okereke v. United States, 307 F.3d 117 (3d Cir. 2002) (citing Davis v. United States 417 U.S. 333, 342 (1974)); see In re Dorsainvij 119F.3d 245 (3d Cir. 1997). A petitioner may only resort to a § 2241 petition in the unusual situation where the remedy by motion under § 2255 would be inadequate or ineffective. See 28 U.S.C. § 2255; see Dorsainvij 119 F.3d at 251-52. Importantly, §2255 is not "inadequate or ineffective" merely because the sentencing court has previously denied relief. See Id. at 251. Nor do legislative limitations, such as statutes of limitation or gatekeeping provisions, as is the case here, placed on § 2255 proceedings render the remedy inadequate or ineffective so as to authorize pursuit of a habeas corpus petition in this court. Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002); United States v. Brooks, 230 F.3d 643, 647 (3d Cir. 2000); Dorsainvij 119 F.3d at 251.). Rather, only when a federal prisoner is in an unusual position of having no earlier opportunity to challenge his conviction or where he "is being detained for conduct that has subsequently been rendered noncriminal by an intervening Supreme Court decision" can he avail himself of §2241. Dorsainvij 119 F.3d at 251-52.

         Shaw's first § 2255 motion was denied on the merits and the sentencing court construed his motion for reconsideration of that denial as a second or successive petition and dismissed it without prejudice to seek authorization to file a second § 2255 petition in the United States Court of Appeals for the Tenth Circuit. Shaw, 2017 WL 2191345, at * 1. Rather than pursue that avenue of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.