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Perry v. Warden, FCI Allenwood Low

United States District Court, M.D. Pennsylvania

November 30, 2017

FREDERICK PERRY, Petitioner
v.
WARDEN, FCI ALLENWOOD LOW, Respondent

          MEMORANDUM

          JAMES M. MUNLEY JUDGE, United States District Court

         Presently before the court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), filed on September 18, 2017, by Frederick Perry (“Perry”), a federal inmate confined at the Federal Correctional Institution at Allenwood, Low, White Deer, Pennsylvania.

         The Court has conducted preliminary review and, for the reasons set forth below, will dismiss the petition for lack of jurisdiction. See R. Governing § 2254 Cases R. 4, 1(b).[1]

         I. Background

         The following is extracted from an opinion of the United States District Court for the Northern District of Illinois:

By way of background, Defendant/Petitioner Frederick Perry was indicted on one count of distributing 50 grams or more of mixtures containing cocaine base in the form of crack cocaine in December 2006. On June 26, 2008, Perry entered a “blind” guilty plea to the charge before Judge Hibbler, to whom this case was then assigned. Although Perry's motion refers to a plea agreement with the Government, Perry's guilty plea was not taken by the district court pursuant to a plea agreement. As is common in the context of a “blind” plea, Perry filed a plea declaration. The plea agreement attached to Perry's motion as “App. A” appears to be a copy of the draft plea agreement that the Government tendered to Perry's counsel during plea negotiations.
On February 26, 2009, the Court sentenced Perry to 226 months' imprisonment and five years of supervised release. The district court adopted the uncontested Presentence Investigation Report's Guideline calculations, under which Perry's career offender advisory Guideline range was 262 to 327 months. Perry did not appeal his conviction or sentence. Rather, on November 5, 2012, he filed a motion to vacate, set aside, or correct his sentence under 18 U.S.C. § 2255.

United States v. Perry, No. 12 C 8700, 2013 WL 1966637, at *1 (N.D. Ill. May 13, 2013). On May 13, 2013, the sentencing court denied Perry's § 2255 motion as untimely. Id.

         On April 3, 2015, Perry filed a Motion for Sentence Reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782. (Doc. 1-1, p. 3). The sentencing court denied the motion on August 27, 2015. (Id.) The United States Court of Appeals for the Seventh Circuit granted Perry authorization to file a successive § 2255 motion. (Id.) He filed his successive § 2255 on September 19, 2016. (Id.) It was denied on July 6, 2017. (Id.)

         Perry raises the following issue in the instant petition, “[w]hether in light of Mathis v. United States, 136 S.Ct. 2243 (2016), United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) and Holt v. United States, (No. 16-1793)(7th Cir. Dec. 13, 2016). Perry's prior convictions do not qualify him as a career offender requiring resentencing without the career offender enhancement.” (Doc. 1-1, p. 2).

         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 Dorsainvil, 119 F.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 Dorsainvil, 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, 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); Dorsainvil, 119 F.3d at 251.).

         The recognized exception to the general rule, that a challenge to a conviction or sentence must be brought under 28 U.S.C. § 2255 in the sentencing court, is “where the petitioner was in the ‘unusual position' of a prisoner with no prior opportunity to challenge his conviction for a crime that an intervening change in substantive law could negate with retroactive application.” Okereke v. U.S., 307 F.3d 117, 120 (3d Cir. 2002) (quoting In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)). Perry's claim is not based upon a contention that the conduct which led to his conviction is no longer criminal as a result of some change in the law. Instead, he challenges the basis for his sentence enhancement under the Armed Career Criminal Act, pursuant to Mathis, 136 S.Ct. 2243. The Third Circuit Court of Appeals has not extended the limited Dorsainvil exception to include situations where a prisoner is challenging a sentence enhancement based on an intervening change in substantive law. Okereke, 307 F.3d at 120 (refusing to extend Dorsainvil exception to sentencing challenge under Apprendi). The remedy afforded under §2241 is not an additional, alternative, or supplemental remedy to that prescribed under §2255 and Perry fails to demonstrate that he falls within the Dorsainvil exception.

         Moreover, it appears that Perry may still have an avenue of relief open to him. In his most recent successive Section 2255 motion, ...


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