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McGee v. Ebbert

United States District Court, M.D. Pennsylvania

November 1, 2019

DELBERT MCGEE, Petitioner
v.
DAVID EBBERT, WARDEN, Respondent

          CONNER, C.J.

          REPORT & RECOMMENDATION

          William I. Arbuckle U.S. Magistrate Judge.

         I. INTRODUCTION

         Delbert McGee (“Petitioner”), a federal inmate at USP Lewisburg, filed a habeas corpus petition under 28 U.S.C. § 2241, challenging the calculation of his federal sentence. Petitioner argues that he should not have been classified as a career offender under the Armed Career Criminal Act. For the reasons explained below, I recommend that this Petition (Doc. 1) be DISMISSED.

         II. FACTS AND PROCEDURAL HISTORY

         On December 6, 2010, pursuant to a plea agreement, Petitioner pled guilty to a charge of felon in possession of a firearm in the United States District Court for the Central District of Illinois. (Doc. 1, p. 1; Doc. 1-1, p. 2). At the time of sentencing, based on Petitioner's past criminal history, Petitioner qualified for a statutorily enhanced sentence under the Armed Career Criminal Act (“ACCA”). (Doc. 1-1, p. 2). Petitioner's guideline range was increased from a range of 0 months to 120 months to a range of 180 months to life imprisonment. Id. Petitioner was sentenced to 188 months imprisonment. Id. Petitioner did not appeal his conviction or sentence. Id.

         In October 2012, Petitioner filed a § 2255 motion[1], challenging his career offender status. Id. at p. 2-3. The sentencing court denied Petitioner's motion. Id.

         In June 2014, Petitioner filed an application with the Seventh Circuit Court of Appeals seeking permission to file a second § 2255 motion. Id. at p. 3. Petitioner argued that the Supreme Court's ruling in Descamps v. United States[2] invalidated his career offender status. Id. The Seventh Circuit denied Petitioner's application. Id.

         In May 2016, Petitioner again filed an application seeking permission to file a second § 2255 motion. Id. In this application, Petitioner argued that under Johnson v. United States[3], his career offender status was unconstitutional as his prior Illinois burglary convictions were not predicate offenses under the ACCA. Id. The Seventh Circuit denied the application. Id.

         In January 2017, Petitioner filed another application seeking permission to file a second § 2255 motion. Id. Petitioner based this application on the Supreme Court's decision in Mathis v. United States, Johnson v. United States, and Welch v. United States.[4] Id. The Seventh Circuit again denied his application. Id.

         On March 1, 2018, Petitioner filed a Petition for Writ of Habeas Corpus (Doc. 1). Petitioner challenges his sentence as unconstitutional, arguing that he should not have been deemed a career offender under the ACCA. Petitioner argues that he is entitled to relief under Section 2241, because Section 2255 is inadequate and ineffective to address his claims.

         On August 31, 2018, Respondent filed a Response to the Petition for Habeas Corpus (Doc. 9). On September 14, 2018, Petitioner filed a Traverse (Doc. 10).

         III. DISCUSSION

         Under Section 2241, a federal prisoner may challenge the execution of his sentence-such as a claim concerning the denial or revocation of parole, or the loss of good-time credits-in the district court for the federal judicial district where the prisoner is in custody. See 28 U.S.C. § 2241(a); Rumsfeld v. ...


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