United States District Court, W.D. Pennsylvania
WILLIE G. GULLEY, JR., Petitioner,
MICHAEL SMITH, WARDEN, CAMBRIA COUNTY PRISON, Respondent WILLIE G. GULLEY, JR., Petitioner,
MICHAEL SMITH, WARDEN, CAMBRIA COUNTY PRISON, Respondent
ORDER, AND REPORT AND RECOMMENDATION ORDER
A. PESTO, UNITED STATES MAGISTRATE JUDGE
is confined at the Cambria County Prison, awaiting trial on
federal controlled substances charges at United States v.
Gulley, Case No. 3:18-cr-9-KRG-KAP (W.D.Pa.). On August
2, 2019, petitioner filed a petition for a writ of habeas
corpus at Gulley v. Smith, Case No.
3:19-CV-121-KRG-KAP (W.D.Pa.). without the filing fee or a
motion to proceed in forma, pauperis accompanied by
an inmate account statement as required by the Prison
Litigation Reform Act. On October 4, 2019, petitioner filed a
second petition for a writ of habeas corpus at Gulley v.
Smith, Case No. 3:19-cv-156-KRG-KAP (W.D.Pa.), again
without the filing fee or valid motion to proceed in
however, refers in the body of his petitions to having filed
motions to proceed in forma pauperis, and it is
probably the case that petitioner is assuming that his
previous motions, including the one I granted in his current
criminal prosecution, carry over to these cases. I grant
petitioner leave to proceed in forma pauperis.
recommend that the petitions be summarily dismissed without
service. See 28 U.S.C.§ 2243.
pleadings are not at all clear, but it appears that both
petitions make the same claim, namely that he was not
resentenced properly in United States v. Gulley,
Case No. 3:05-cr-16-KRG-KA.P (W.D.Pa.). In that case,
petitioner was originally sentenced on December 12, 2006, to
a term of 151 months imprisonment followed by 5 years
supervised release. Petitioner was resentenced on September
8, 2008; the Court reduced petitioner's term of
imprisonment to 121 months as a result of a motion under 18
U.S.C.S 3582(c)(2) seeking retroactive application of
Amendment 706 to the United States Sentencing Guidelines,
that had the effect of changing the drug quantity tables at
Guideline §2D1.1. Petitioner was resentenced a second
time on May 14, 2012, as a result of a motion seeking
application of Amendment 75 0 that retroactively applied the
Fair Sentencing Act of. 2010. Petitioner's term of
imprisonment was reduced to 120 months.
was released from the term of imprisonment imposed in
United States v. Gulley, Case No. 3:05-cr-16-KRG-KAP
(W.D.Pa.) in 2 013. He subsequently was prosecuted for
committing new controlled substance offenses at United
States v. Gulley, Case No. 3:15-cr-13-KRG-KAP (W.D.Pa.)
and on September 4, 2015, received a new sentence on those
charges of 3 6 months imprisonment followed by 3 years of
supervised release. Upon his release from the imprisonment
term in that matter, petitioner was again arrested for new
controlled substance offenses. I have ordered him detained
under the Bail Reform Act pending trial in United States
v. Gulley, Case No. 3:15-cr-13-KRG-KAP (W.D.Pa.).
petitions assert, in a completely conclusory fashion, that
subsequent changes in the law should have further reduced his
sentence in United States v. Gulley, Case No.
3:05-cr-16-KRG-KAP (W.D.Pa.) to 60 months imprisonment and 3
years supervised release. By his calculations he is getting
no credit for what he believes is 4 years and 9 months of
"overserving" his sentence. Although petitioner
does not mention it by name it is safe to assume that by
subsequent changes in the law he means the First Step Act of
2018, Pub. L. No. 115-391, § 401. The FSA would not
apply to petitioner because his sentence was imposed before
the effective date of the statute. United States v.
Aviles, No. 18-2967, 2019 WL 4309665, at *3 (3d Cir.
Sept. 12, 2019). It is also possible that petitioner simply
intends to advance again the argument rejected (without
appeal) by the court in 2012 that the court should depart
below the applicable mandatory minimum term of 120 months
this court need not seek clarification of petitioner's
claim, much less reach its merits. Habeas corpus works by
affecting custody simpliciter and not, legally
speaking, by reviewing a judgment. Coleman v.
Thompson, 501 U.S. 722, 730 (1991), citing and
overruling on other grounds Fay v. Noia, 372 U.S.
391, 430 (1963). Petitioner's custody is not due to his
sentence in United States v. Gulley, Case No.
3:05-cr-16-KRG-KAP (W.D.Pa.), and his release would not be
effected (or his release date affected) by any hypothetical
resentencing in that case. Petitioner's custody is due to
the new charges at United States v. Gulley, Case No.
III, Section 2 of the Constitution limits the jurisdiction of
the federal courts to cases or controversies, which requires
the petitioner to have standing to sue. The three elements of
standing a petitioner must allege in a habeas corpus petition
are that he has suffered a legally cognizable injury (he is
"in custody"), that the injury is fairly traceable
to the respondent's conduct (the warden is unlawfully
holding him), and that the injury is "likely to be
redressed by the requested relief." Raines v.
Byrd, 521 U.S. 811, 818-19 (1997) (quoting Allen v.
Wright. '468 U.S. 737, 751 (1984)), in other words
that he would be released (or released sooner) from custody.
Because petitioner, assuming he is in custody in United
States v. Gulley, Case No. 3:05-cr-16-KRG-KAP (W.D.Pa.),
would not be released from custody even if he were to be
resentenced yet again in United States v. Gulley,
Case No. 3:05-cr-16-KRG-KAP (W.D.Pa.) to a term of zero
months imprisonment, petitioner cannot satisfy this third
element of standing.
one of petitioner's several previous sentences should
have an effect on his custody, petitioner has other avenues
to raise any legal claim. If he seeks pretrial release in
United States v. Gulley, Case No. 3:18-cr-9-KRG-KAP
(W.D.Pa.), his counsel in that case can file a motion under
the Bail Reform Act. If petitioner is eventually convicted on
his new charges, at sentencing he can make whatever argument
is appropriate based on his theory that his prior sentence
should have been lower. See e.g. United States
Sentencing Guideline §4A1.3 (b) (1) . But he cannot
litigate his theory about overserving his previous sentence
in a habeas petition.
to 28 U.S.C. § 63 6 (b) (1), the petitioner is given
notice that he has fourteen days to file written ...