United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.
Thomas Garcia, an inmate confined in the Canaan United States
Penitentiary (“USP-Canaan”), Waymart,
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 Northern District of Texas,
Lubbock Division. Id. Specifically, he states that
“Burrage, Rosemond and
McFadden are intervening substantive changes in the
interpretation of federal criminal law, rendering [him]
convicted of an act that the law does not make criminal
retroactively applicable by the Supreme Court.”
Id. As such, Garcia claims that he is actually
innocent of 21 U.S.C. §841(a)(1), (b)(1)(B)(viii) and 18
U.S.C. §2 conviction for distribution and possession
with intent to distribute 5 grams or more of methamphetamine
and aiding and abetting absent advanced knowledge of
controlled substance act or analogue. Id. For
relief, he requests the Court “set aside plea as
nullity and vacate convictions for Count 3 as void and grant
him his immediate release from unlawful custody of the
BOP” or “resentence him to correct fundamental
miscarriage of justice to one who is factually
September 22, 2010, Garcia was indicted in the United States
District Court for the Northern District of Texas on various
drug distribution charges. United States v. Garcia,
No. 5:10-CR-00104 (N.D. Tx.)
March 10, 2011, Garcia plead guilty to one count of
distribution and possession with intent to distribute five
grams or more of methamphetamine in violation of 21 U.S.C.
§841(a)(1), 841(b)(1)(b)(viii); 18 U.S.C. § 2.
Id. As part of the plea agreement, Garcia was
informed that this drug distribution crime had a sentencing
range of not less than 5 years and not more than 40 years.
Id. Garcia acknowledged that he would be sentenced
pursuant to the United States Sentencing Guidelines, which
guidelines were advisory, and that he could not withdraw his
plea if the sentence imposed was higher than expected.
Id. Additionally, Garcia agreed not to contest his
conviction and sentence in any collateral challenge brought
under § 2241 or § 2255 other than a claim of
ineffectiveness of counsel or a sentence exceeding the
statutory maximum of 40 years. Id.
separate “Factual Resume, ” which was signed by
Garcia and made part of the criminal record, Garcia
acknowledged that the elements of the crime of
“distribution and possession with intent to distribute
five grams or more of methamphetamine” consisted of:
(1) him knowingly or intentionally distributing or possessing
a controlled substance, (2) which was methamphetamine; (3)
that he possessed the drug with the intent to distribute it;
and (4) that the quantity of the drug was at least five grams
of “actual methamphetamine.” Id. Garcia
further admitted that on June 22, 2010, he and a codefendant
had sold 27.1 net grams of methamphetamine, a schedule II
controlled substance, with a purity level of at least 95.5%,
such that the amount of pure methamphetamine was 25.88 grams.
Id. Garcia further admitted that “he knowingly
and intentionally distributed and possessed 25.88 net grams
of actual methamphetamine or aided and abetted Monica Alicia
Garcia with knowingly and intentionally distributing and
possessing 25.88 net grams of actual methamphetamine.”
1, 2011, Garcia was sentenced, inter alia, to 150 months of
11, 2011, Garcia filed an appeal to the United States Court
of Appeals for the Fifth Circuit. Id.
September 17, 2012, the Fifth Circuit dismissed Garcia's
appeal for Petitioner's failure to present a nonfrivolous
issue for appellate review. See United States v.
Garcia, 475 Fed. App'x. 1002 (5th Cir. 2012).
April 19, 2013, Garcia filed a Motion to Vacate under 28
U.S.C. §2255. See Garcia v. United States, No.
5:13-CV-0104 (N.D. Tx). He alleged that: (1) his counsel was
ineffective for failing to object to the presentence
report's determination that he was responsible for
25.7853 grams of “actual” methamphetamine; (2) he
was actually innocent of his sentence because the record did
not support the quantity of actual methamphetamine; (3) his
appellate counsel was ineffective for failing to argue that
it was unconstitutional to hold him responsible for a drug
amount greater than he had plead guilty to distributing; and
(4) he should be resentenced due to his postsentence
rehabilitative progress and granted a downward departure.
20, 2013, the Government filed a response to §2255
motion, detailing its lack of merit both factually and under
the law. Id. The Government explained that Garcia
had admitted that he was responsible for 25.785 grams of
“actual” methamphetamine, and that Garcia's
counsel was not ineffective in failing to challenge the drug
amounts, which was supported by the guidelines. Id.
Order dated August 2, 2013, the sentencing court found the
The Court has considered Movant's motion,
Respondent's response, Movant's reply, and the
relevant records and is of the opinion that Movant's
Motion Under 28 U.S.C. §2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody
should be DENIED and
DISMISSED with prejudice for the reasons
stated in Respondent's thorough and well-drafted
Id. On October 21, 2013, Garcia filed an appeal to
the Fifth Circuit which dismissed the appeal on December 11,
2013 for want of prosecution, for Garcia's failure to