United States District Court, W.D. Pennsylvania
PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE.
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.
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. 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.
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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). See also 28 U.S.C. §
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.