United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
30,2007, Petitioner Steven Fausnaught was convicted of
conspiracy to distribute more than 500 grams of
methamphetamine and more than 100 kilograms of marijuana in
violation of 21 U.S.C. § 846; several counts of
distribution and possession with intent to distribute
controlled substances in violation of 21 U.S.C. §
841(a)(1); and illegal possession of a firearm while being a
user of controlled substances in violation of 18 U.S.C.
§ 922(g)(3). Doc. 401. On December 29,2008, Petitioner
was sentenced to 292 months in prison. Doc. 527. Since then,
Petitioner has filed several motions to challenge his
conviction and/or sentence, including, for the purposes of
the instant motion, a previous 28 U.S.C. § 2255 motion
for ineffective assistance of counsel, which was denied on
January 16,2014, and a second 28 U.S.C. § 2255 motion,
which is currently pending before this Court. Doc. 744.
Unlike a typical § 2255 motion seeking to vacate or set
aside a sentence, the second § 2255 motion claims that
Petitioner's sentence is retroactively eligible for a
"minor role reduction" pursuant to Amendment 794,
which amended the commentary to § 3B1.2 (titled
"Mitigating Role") of the Sentencing Guidelines.
Id. at 2-3. For the reasons stated below,
Petitioner's motion will be denied.
case has been addressed numerous times by the district court
and the Third Circuit Court of Appeals over the past decade.
He was convicted on July 30,2007 of several counts related to
conspiracy to distribute drugs, including, among other
things, conspiracy to distribute and possess with intent to
distribute in excess of 500 grams of methamphetamine and in
excess of 100 kilograms of marijuana. Doc. 401. During the
six-day trial, a law enforcement officer testified that his
team seized approximately 15 pounds of marijuana, various
drug paraphernalia used to smoke marijuana, packaging
materials, long rifles, knives, and a number of books related
to the growing of marijuana at Petitioner's home. Doc.
500 at 105. In addition, Petitioner's co-conspirator
testified that he had participated in a conspiracy to
distribute methamphetamine with Petitioner, who was his
methamphetamine supplier. Doc. 501 at 145-154. The
co-conspirator testified, among other things, that police
officers found about "a pound" of methamphetamine
during a search of his home; that he had received the
methamphetamine from Petitioner "just a couple [of] days
before the police executed their search warrant"; that
he had been dealing with Petitioner for about five years;
that Petitioner "fronted" him up to two pounds of
methamphetamine at a time, which he then sold to others, and
that at the time of his arrest, he had owed Petitioner
approximately $90,000 to $100,000 for the drugs that
Petitioner had "fronted" him. Id.
Furthermore, another witness testified about an audio
recording of a phone call involving the Petitioner, who
referenced obtaining "zip" on the call, which the
witness explained was a slang term for methamphetamine. Doc.
502 at 15. At the end of trial, the jury returned a guilty
verdict against Petitioner on all charges. Doc. 401.
Petitioner was then sentenced to 292 months in prison, which
was the bottom of his advisory sentencing guidelines range.
20,2010, the Third Circuit affirmed Petitioner's
conviction as well as his sentence. United States v.
Fausnaught, 380 F.App'x 198,204 (3d Cir. 2010). On
March 20,2012, Petitioner filed his first § 2255 motion,
arguing that he received ineffective assistance of counsel.
Doc. 629. The motion was denied on March 1,2013. Doc. 652. On
October 3,2016, Petitioner filed a second § 2255 motion,
arguing that he is retroactively eligible for a sentence
reduction because he was a minor participant in the
conspiracy to distribute methamphetamine. Doc. 744. The
government opposes Petitioner's motion, arguing that the
Court lacks jurisdiction because the second § 2255
motion was filed without authorization. Doc. 762 at 4-6. In
the alternative, the government contends that even if the
motion were analyzed under the merits, Petitioner would not
qualify for a "minor role reduction" because the
evidence at trial does not support his contention that he
played only a minor role in the conspiracy for which he was
convicted. Id. at 6-8. The motion is now ripe for
convicted person who is currently imprisoned may petition the
sentencing court to correct, vacate, or set aside the
sentence under 28 U.S.C. § 2255. The court may only
grant relief if it finds "(1) 'that the sentence was
imposed in violation of the Constitution or laws of the
United States;' (2) 'that the court was without
jurisdiction to impose such sentence;' (3) 'that the
sentence was in excess of the maximum authorized by law;'
or (4) that the sentence 'is otherwise subject to
collateral attack.'" Hill v. United States,
368 U.S. 424,426-27, 82 S.Ct. 468,470, 7 L.Ed.2d 417 (1962).
a second or successive § 2255 motion may be filed in the
district court, the applicant must move in the appropriate
court of appeals for an order authorizing the district court
to consider the motion." In re Olabode, 325
F.3d 166,169 (3d Cir. 2003). In determining whether an order
shall issue, the court of appeals must find that the
successive motion contains:
(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). Thus, a district court lacks
subject matter jurisdiction over a successive § 2255
motion without authorization from a court of appeals. See
Lugo v. Zickefoose, 427 F.App'x 89, 92 (3d Cir.
2011) (affirming denial of § 2255 motion and holding
that the district court lacked jurisdiction over
petitioner's successive § 2255 motion, given
petitioner's failure to obtain prior authorization from
the court of appeals).
a second or successive habeas petition is erroneously filed
in a district court without the permission of a court of
appeals, the district court's only option is to dismiss
the petition or transfer it to the court of appeals pursuant
to 28 U.S.C. § 1631." Robinson v. Johnson,
313 F.3d 128,139 (3d Cir. 2002). In order to determine if
referral to the court of appeals is appropriate, the district
court should consider whether the petitioner has
"alleged facts sufficient to bring his petition within
the gatekeeping requirement of § 2255 permitting
'second or successive' petitions based upon newly
discovered evidence or a new rule of constitutional
law." Hatches v. Schultz, 381 F.App'x
134,137 (3d Cir. 2010) (citing 28 U.S.C. § 2255(h)).
case, Petitioner filed a successive § 2255 motion
without authorization from the Third Circuit. Thus, the Court
is without jurisdiction to decide his motion. In addition,
Petitioner has not alleged sufficient facts "within the
gatekeeping requirement of § 2255" to warrant a
referral to the Third Circuit, since he cites no newly
discovered evidence or a new rule of constitutional law in
support of his petition. Id. Instead,
Petitioner's only argument is that he is retroactively
eligible for a "minor role reduction" because he
did not meaningfully participate in the conspiracy to
distribute methamphetamine. Doc. 744. Petitioner bases his
argument on Amendment 794 of the Sentencing Guidelines, which
took effect on November 1,2015, approximately eight years
after he was ...