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Holloman v. Perdue

United States District Court, M.D. Pennsylvania

August 13, 2019

DERRICK L. HOLLOMAN, Petitioner
v.
WARDEN R.A. PERDUE, Respondent

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.

         Petitioner, Derrick L. Holloman, an inmate confined in the Schuylkill Federal Correctional Institution, Minersville, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc. 1). He challenges a conviction and sentence imposed by the United States District Court for the Middle District of North Carolina. Id. Specifically, he requests “to be re-sentenced as a career offender or to have [his] prison term vacated on the grounds that a consolidated charge was separated and used to sentence [him] as an armed career criminal and according to North Carolina law the federal court is in complete violation for separating these charges.” Id. He believes that “even though [his] now conviction is valid, [his] sentence however is not.” Id. For the reasons set forth below, the Court will dismiss the petition for writ of habeas corpus for lack of jurisdiction.

         I. Background

         On January 30, 2009, Holloman was indicted in the United States District Court for the Middle District of North Carolina on various violence and firearms charges. United States v. Holloman, No. 1:09-CR-0050-01 (M.D. N.C. ). On May 6, 2009, the district court accepted Holloman's plea of guilty to one count of interference with commerce by violence in violation of 18 §1951(a) and one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), 924(e). Id. As part of the plea agreement, Holloman was informed of the sentencing range for the charges against him. Id. Holloman acknowledged that he would be sentenced pursuant to the United States Sentencing Guidelines, and that the guidelines were advisory. Id.

         On December 23, 2009, Holloman was sentenced to 228 months as to Count 1 and 228 months as to Count 3 to run concurrently with the sentence imposed as to Count 1. Id.

         On December 30, 2009, Holloman filed an appeal to the United States Court of Appeals for the Fourth Circuit. Id. On October 15, 2010, the Fourth Circuit Court of Appeals affirmed the District Court. Id.

         On December 9, 2015, Holloman filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. §2255. Id. As alleged in the instant petition, Holloman claimed that his sentence was improperly increased due to the residual clause of the Armed Career Criminal Act (“ACCA”) in violation of the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015). United States v. Holloman, No. 1:09-CR-0050-01 (M.D. N.C. ).

         In opposing Holloman's § 2255 motion, the Government explained that Holloman had three prior convictions for a “violent felony” that were not subject to the “residual clause” in §924(e) so that his sentence was not affected by Johnson. Id., Additionally, the Government argued that the factual basis in support of Holloman's guilty plea clearly stated he committed a robbery while using a sawed off shotgun so that the four level sentence enhancement was warranted. Id. By Order dated January 27, 2017, the sentencing court denied the §2255 motion, reasoning that Holloway's previous convictions did, in fact, render him an Armed Career Criminal. Id.

         On January 18, 2018, Holloman filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241, in which he requests “to be resentenced as a career offender or to have [his] prison term vacated on the grounds that a consolidated charge was separated and used to sentence [him] as an armed career offender and according to North Carolina law the federal court is in complete violation for separating these charges.” Id. Thus, he concludes that “so even though [his] now conviction is valid...[his] sentence however is not.” Id. (See Doc. 1, petition).

         II. DISCUSSION

         The ACCA imposes a 15-year mandatory minimum sentence on a person convicted of being a felon in possession of a firearm if that person has three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. §924(e)(1). In what is known as the “residual clause, ” the ACCA defines the term “violent felony” to “include any felony that ‘involves conduct that presents a serious potential risk of physical injury to another.' ” Johnson v. United States, 135 S.Ct. 2551, 2555-56 (2015) (quoting 18 U.S.C. §924(e)(2)(B)). In Johnson, the Supreme Court of the United States held that the residual clause of the ACCA is unconstitutionally vague, and that imposing an increased sentence under that clause violates due process. Id. at 2563. Here, Holloman appears to contend that because his prior convictions was classified as violent felonies under the residual clause of the ACCA, his underlying criminal sentence is unconstitutional and must, therefore, be vacated, set aside, and corrected. A federal prisoner like Holloman, however, is generally required to use 28 U.S.C. §2255 to collaterally attack his conviction or sentence on constitutional grounds. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). He “can seek relief under §2241 only if the remedy provided by §2255 is inadequate or ineffective to test the legality of his detention.” Manna v. Schultz, 454 Fed.Appx. 31, 33 (3d Cir. 2010).

         A motion under §2255 is inadequate or ineffective only if “some limitation of scope or procedure would prevent a [§]2255 proceeding from affording the prisoner a full hearing and adjudication of his claim of wrongful detention.”Application of Galante, 437 F.2d 1164, 1165-66 (3d Cir. 1971). “Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended §2255.” Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002). “It is the inefficacy of the remedy, not the personal inability to utilize it, that is determinative.” Id. at 538.

         The petitioner has the burden of proving that the remedy afforded by §2255 is inadequate or ineffective. Brown v. Mendez, 167 F.Supp. 2d 723, 726 (M.D. Pa. 2001). And, when a petitioner improperly challenges a conviction or sentence under §2241, the petition must be dismissed for lack of jurisdiction. Gardner v. Warden Lewisburg USP, 845 F.3d 99, 104 (3d Cir. 2017) (affirming the District Court's order denying Gardner's §2241 habeas petition for lack of jurisdiction).

         In In re Dorsainvil,119 F.3d 245 (3d Cir. 1997), the United States Court of Appeals for the Third Circuit addressed the question of when a prisoner may bring a §2241 habeas petition after being denied leave to file a second or successive §2255 motion. The Third Circuit held that a federal prisoner barred from filing a second or successive §2255 motion can resort to a §2241 habeas petition if the prisoner “had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law” negated. Id. at 251. “[T]he “safety valve” provided under §2255” and as outlined in Dorsainvil “is extremely narrow and has been held to apply only in unusual situations, such as those in which a prisoner has had no prior opportunity to challenge his conviction for a crime later deemed to be non-criminal by an intervening change in law.” Brown v. United States, 413 Fed.Appx. 514, 516 (3d Cir. 2011); Bruce v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017) (stating that it permits access to §2241 “when there is a change in statutory caselaw that applies retroactively in cases on collateral review” and the prisoner is ‘otherwise barred from challenging the legality of the conviction under §2255.' ” (quoting United States v. Tyler,732 F.3d 241, 246 (3d Cir. ...


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