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Sukhu v. United States

United States District Court, M.D. Pennsylvania

September 19, 2017

ANIRUDH L. SUKHU, Petitioner
v.
UNITED STATES OF AMERICA, et al., Respondents

          MEMORANDUM

          William W. Caldwell, United States District Judge.

         I. Introduction

         Anirudh L. Sukhu, an inmate at the Allenwood Low Federal Correctional Institution (LFCI Allenwood), in Allenwood, Pennsylvania, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his Petition, Sukhu challenges his 2009 conviction and sentence in the United States District Court for the District of Maryland for armed bank robbery under 18 U.S.C.§ 2113(a), (d) and (f), and the use of a firearm in connection with a crime of violence under 18 U.S.C. § 924(c). Sukhu argues, in part, that in light of Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), [1] his armed bank robbery conviction in violation is no longer a “crime of violence” within the meaning of 18 U.S.C. § 924(c)(3). Sukho also seeks to be resentenced in light of United States v. Mathis, ___ U.S. ___, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) based on his belief that he was subjected to “double counting” when he was sentenced under 18 U.S.C. § 924(c) for both bank robbery (where he discharged a firearm) and for possessing and discharging a firearm under 18 U.S.C. § 924(c), which carries a mandatory consecutive ten-year sentence. Respondent argues that neither Johnson nor Mathis represents an intervening change in law which invalidates Sukhu's conviction.

         For the reasons that follow, the Petition must be construed as a motion under § 2255 and denied.

         II. Background and Procedural History[2]

         In December 2008, a grand jury for the United States District Court for the District of Maryland returned a three-count indictment charging Sukhu with conspiring to commit bank robbery in violation of 18 U.S.C. §§ 2113(a) and (f) and 18 U.S.C. § 371 (Count I); robbing a bank by force or violence in violation of 18 U.S.C. §§ 2113(a)(, (d), and (f) (Count II); and using a firearm (discharge) in the commission of robbing a bank in violation of 18 U.S.C. § 924(c) (Count III). On July 23, 2009, Sukhu entered into a plea agreement agreeing to plead guilty to Counts II and III. Count I was dismissed. On December 11, 2009, Sukhu was sentenced to consecutive terms of 135 months' imprisonment on Count II and 120 months on Count III. On October 29, 2010, the Fourth Circuit dismissed his appeal.

         On January 18, 2011, Sukhu filed a § 2255 motion to vacate, set aside or correct his sentence. The sentencing court denied the motion on November 18, 2011. Sukhu v. United States, Civ. No. WDQ-11-0061, 2011 WL 5839001 (D. Md.). The Fourth Circuit affirmed the district court's order denying Petitioner relief on his 28 U.S.C. § 2255 motion on May 3, 2012. United States v. Sukhu, No. 11-7708, 472 F. App'x 170 (4th Cir. 2012)(nonprecedential).

         On June 23, 2016, the Fourth Circuit denied Sukhu's motion pursuant to 28 U.S.C. § 2244(b) and § 2255(h) for authorization to file a second or successive 28 U.S.C. § 2255 motion relying upon Johnson, supra and Welch, supra.

         III. Discussion

         “A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the means to collaterally challenge a federal conviction or sentence, ” Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009), and must be presented to the court that imposed the sentence. See 28 U.S.C. § 2255(a) (providing that a defendant “may move the court which imposed the sentence”). When challenging the validity rather than the execution of a federal sentence, a federal prisoner must do so through a § 2255 motion. See In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). Section 2255 provides that federal prisoners like Petitioner, who have already filed a § 2255 motion, may file a “second or successive motion” provided that “a panel of the appropriate court of appeals” has certified that the motion contains “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense” or that the motion relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(3)(A).

         With limited exceptions, § 2255 does not permit prisoners to challenge the validity of their conviction or sentence through a § 2241 habeas petition. See 28 U.S.C. § 2255(e). Where a federal prisoner improperly challenges their federal conviction or sentence under § 2241, the district court must typically dismiss the petition for lack of jurisdiction. Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002).

         Under highly exceptional circumstances, the “safety valve” or “savings clause” found in 28 U.S.C. § 2255(e) will permit a prisoner to challenge the validity of his conviction in a habeas corpus proceeding under § 2241, but only where the remedy afforded by § 2255(a) “is inadequate or ineffective” to test the legality of his detention. 28 U.S.C. § 2255(e); Gardner v. Warden Lewisburg, 845 F.3d 99, 101 (3d Cir. 2017); Dorsainvil, 119 F.3d at 249 - 51. For a § 2241 petition to be appropriate, the inadequacy or ineffectiveness of a § 2255 motion must be “a limitation of scope or procedure [that] would prevent a § 2255 proceeding from affording [the petitioner] a full hearing and adjudication of his wrongful detention claim.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing Cradle, 290 F.3d at 538). “It is the inefficacy of the remedy, not the personal inability to use it, which is determinative.” Cradle 290 F.3d at 538-39. A § 2255 motion is not “inadequate or ineffective” merely because the prisoner's time to file a § 2255 motion has passed; he did not file a § 2255 motion; he did file such a motion and was denied relief; or he cannot otherwise meet the stringent gatekeeping requirements of § 2255(h) to file a second or successive § 2255 motion. Troiano v. Warden Allenwood USP, 614 F. App'x 49, 51 (3d Cir. 2015)(nonprecedential).

         The Third Circuit has only applied this “safety valve” in the rare situation where an intervening change in law has decriminalized the actions underlying the prisoner's conviction. Okereke, 307 F.3d at 120 (citing Dorsainvil, 119 F.3d at 251). A § 2255 motion is inadequate “when a petitioner asserts a claim of ‘actual innocence' on the theory that ‘he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision' . . . but is otherwise barred from challenging the legality of the conviction under § 2255.” United States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013) (quoting Dorsainvil, 119 F.3d at 252). The savings clause of § 2255, however, is confined to instances of actual innocence of the underlying offense of conviction, not innocence of a sentencing factor. “Section 2241 is not available for intervening changes in the sentencing law” as such alterations would not render the crime for which the prisoner was convicted non-criminal. United States v. Kenney, 391 F. App'x 169, 172 (3d Cir. 2010)(nonprecedential)(citing Okereke, 307 F.3d at 120-121).

         Here Sukhu does not allege facts to bring his conviction within the Dorsainvil exception. He cannot demonstrate that his circumstances constitute the sort of miscarriage of justice what would justify application of the safety valve language of ยง 2255 rather than its gatekeeping ...


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