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Luster v. Oddo

United States District Court, M.D. Pennsylvania

July 12, 2017

DAVID A. LUSTER, Petitioner,
v.
L. J. ODDO, WARDEN, Respondent.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge

         I. BACKGROUND

         David A. Luster, an inmate presently confined at the Allenwood United States Penitentiary, White Deer, Pennsylvania (USP-Allenwood) filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2241. Named as Respondent is USP-Allenwood Warden L. J. Oddo. The required filing fee has been paid.

         Petitioner was indicted by a grand jury in the United States District Court for the Middle District of Georgia on a charge of aggravated bank robbery. Luster was subsequently convicted of that offense and is presently serving an enhanced sentence under the Armed Career Criminal Act (ACCA) imposed on April 1, 2004. See Doc. 1, ¶ 4.

         In his pending action, Petitioner claims that the Federal Bureau of Prisons (BOP) was precluded from implementing the Inmate Financial Responsibility Program (IFRP) in his case because “he is actually innocent of a crime of violence.” Id., ¶ 5. The petition notes that because the landscape of the law has substantively changed since his conviction as a result of the principles announced in cases such as Apprendi v. New Jersey, 530 U.S. 466 (2000)[1] and Johnson v. United States, 135 S.Ct. 2551 (2015), his original conviction is unconstitutional and the taking of his funds via the IFRP constitutes extortion by the BOP.[2]

         Petitioner explains that his underlying “charging document” did not provided adequate notice of his criminal charges because it failed to expressly mention use, attempted use, threatened use of physical force in seeking an enhanced sentence under the ACCA. Doc. 2, p. 2.

         As relief, Petitioner asks that his judgment of sentence be set aside and remanded for resentencing and that he be provided with reimbursement of funds taken from his inmate account under the IFRP.

         It is initially noted that this is the second § 2241 action filed by Luster with this Court in 2017. Petitioner's earlier action, Luster v. Oddo, 17-CV- 684, similarly challenged the legality of his underlying criminal indictment on the basis that it did not explicitly express the essential facts of the criminal charges. Luster's earlier case was transferred to the sentencing court for consideration of his Johnson based argument on May 25, 2017. This one will be as well.

         II. DISCUSSION

         A. Standard of Review

         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).

         A federal prisoner may challenge the execution of his sentence by initiating an action pursuant to § 2241. See Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). Prisoners may bring habeas corpus petitions to attack either the fact or duration of their confinement in prison. Preiser v. Rodriguez, 411 U.S. 475 (1973), Telford v. Hepting, 980 F.2d 745, 748 (3d Cir.), cert. denied, 510 U.S. 920 (1993). However, federal habeas corpus relief is only available “where the deprivation of rights is such that it necessarily impacts the fact or length of detention.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002).

         B. ...


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