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Toole v. FPC McKean Warden

United States District Court, W.D. Pennsylvania

March 28, 2018

ALGERNON TOOLE, Petitioner,
v.
FPC McKEAN WARDEN, et al., Respondents.

          OPINION[1]

          SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE.

         Presently before the Court is a petition for a writ of habeas corpus filed by federal prisoner Algernon Toole pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the petition is dismissed for lack of jurisidiction.

         I.

         A. Background

         Toole was convicted in 2010 in the United States District Court for the Western District of New York of Conspiracy to Possess with Intent to Distribute and to Distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count One), and Conspiracy to Possess with Intent to Distribute and to Distribute five (5) kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count Two). On September 21, 2010, that court sentence him to 240 months of imprisonment on each count, to run concurrent.[2] After the United States Court of Appeals for the Second Circuit affirmed his judgment, Toole filed in the District Court for the Western District of New York a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which that court denied. It also denied him a certificate of appealability.

         The 1996 amendments that the Antiterrorism and Effective Death Penalty Act ("AEDPA") made to § 2255 bar a federal prisoner from filing a second or successive § 2255 motion unless the appropriate court of appeals first certifies the filing contains a claim based on:

(1) 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
(2) 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). See also 28 U.S.C. § 2244(a).

         In 2017, Toole filed in the Second Circuit Court of Appeals an application for authorization to file a second or successive § 2255 motion. On August 29, 2017, the court of appeals denied his application. In its order, it explained:

Petitioner moves for leave to file a successive 28 U.S.C. § 2255 motion. Upon due consideration, it is hereby ORDERED that the motion is DENIED because Petitioner has not made a prima facie showing that the requirements of 28 U.S.C. § 2255(h) are satisfied.
Petitioner does not make a showing that his claims are based on newly discovered evidence within the meaning of § 2255(h)(1), or a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court within the meaning of § 2255(h)(2). Regarding the decisions cited in support of his claims, nearly all predate his first § 2255 motion and several were not decided by the Supreme Court. Although he also cites Alleyne v. United States, 133 S.Ct. 2151 (2013), which was decided after Petitioner filed his first § 2255 motion, that case "did not announce a new rule of law made retroactive on collateral review." United States v. Redd, 735 F.3d 88, 92 (2d Cir. 2013).
To the extent Petitioner asserts actual innocence, he does not make a showing that his claim is based on new evidence or that he is factually innocent of either the crime he was convicted of or the conduct underlying the sentencing enhancements. House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)) (discussing standard for actual innocence claims as gateway to defaulted constitutional claims); id. at 555 (quoting Herrera v. Collins, 506 U.S. 390, 417 (1993)) (discussing the higher standard applicable to freestanding actual innocence claims); Bousley v. United States, 523 U.S. 614, 623-24 (1998) (holding that actual innocence means factual innocence); Poindexter v. ...

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