In re Nwanze

• Decision Date: 23 March 2001
• Docket Number: No. 00-1459,00-1459
• Citation: 242 F.3d 521
• Parties: (3rd Cir. 2001) IN RE: AUSTEN O. NWANZE, PETITIONER <A HREF="#fr1-*" name="fn1-*">* On Petition for a Writ of Mandamus
• Court: U.S. Court of Appeals — Third Circuit

Page 521

242 F.3d 521 (3rd Cir. 2001)

IN RE: AUSTEN O. NWANZE, PETITIONER^*

No. 00-1459

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

On Petition for a Writ of Mandamus Argued February 15, 2001

Filed March 13, 2001

As amended March 23, 2001.

Directed to the United States District Court for the Western District of Pennsylvania District Judge: Honorable Sean J. McLaughlin, (Related to D.C. Civ. No. 98-00025E)

Attorneys for Petitioner: Jon Hogue (argued) Hogue & Lannis 3400 Gulf Tower Pittsburgh, PA 15219

Attorneys for Respondent: Paul J. Brysh (argued) Tina M. Oberdorf Office of the United States Attorney Harry Litman United States Attorney 633 United States Post Office & Courthouse Pittsburgh, PA 15219

Before Mansmann, Ambro, and Greenberg, Circuit Judges

OPINION OF THE COURT

Greenberg, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on a petition for a writ of mandamus in the following circumstances. On June 8, 1992, the United States District Court for the Eastern District of Virginia sentenced the petitioner, Austen O. Nwanze, following his conviction at a jury trial, to prison terms of 168 months for various drug offenses and 60 months for each of two firearms violations. The court ordered Nwanze to serve all the sentences concurrently even though one of the two firearms convictions and sentences was for using or carrying a firearm in violation of 18 U.S.C. § 924(c) during or in relation to certain other offenses. Subsequently, the district court amended the judgment of conviction and sentence so that the 60-month sentence on the section 924(c) conviction ran consecutively to the other sentences as required by section 924(c)(1)(A). Consequently, Nwanze's sentence became 228 months. Nwanze appealed from the amended judgment of conviction and sentence to the United States Court of Appeals for the Fourth Circuit which affirmed on September 24, 1993, in an unpublished opinion.

Thereafter, Nwanze filed a motion in the Eastern District of Virginia to vacate the sentence pursuant to 28 U.S.C. § 2255. The district court denied that motion and once again on appeal the court of appeals affirmed.

After the failure of Nwanze's section 2255 petition, the Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995), held that a defendant could not be convicted of using a firearm under section 924(c) unless the government proved that the defendant "actively employed the firearm during and in relation to the predicate crime." Id. at 150, 116 S.Ct. 509. While Bailey was not concerned directly with the "carries" prong of section 924(c), the government in this proceeding has conceded that "[a] review of the facts of this case would indicate that Nwanze's conviction would in all likelihood, be vacated under Bailey and existing Fourth Circuit authority." App. at 23.

In reliance on Bailey, Nwanze attempted to file a second motion under section 2255 in the Eastern District of Virginia to vacate his sentence, but he was not successful as the district court and the court of appeals denied him authorization to proceed under the Anti terrorist and Effective Death Penalty Act of 1996 ("AEDPA") because his motion was an unauthorized second or successive motion. While the orders of the courts do not expressly so recite, the parties believe that the district and circuit courts denied him permission to proceed as, in their view, Bailey did not adopt a new rule of constitutional law thereby justifying the filing of the petition. See App. at 40-44; 28 U.S.C. § 2255(2). These dispositions left Nwanze in the unfortunate position of being compelled to serve a five-year term of imprisonment, at the end of the balance of his confinement for his other offenses, for conduct that was not criminal within the scope of the statute pursuant to which he had been convicted and sentenced.

The denial of Nwanze's motion, however, did not necessarily leave him without a remedy for our opinion in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), suggested that a prisoner in his situation after the Supreme Court's opinion in Bailey could seek habeas corpus relief under 28 U.S.C. § 2241 in a district court in the district in which he was confined, even though ordinarily a petitioner should advance a challenge to a conviction and sentence through the means of a motion under section 2255 in the sentencing court. See Dorsainvil, 119 F.3d at 252. Thus, in reliance on Dorsainvil, Nwanze filed a pro se habeas corpus petition in the Western District of Pennsylvania under section 2241, which he asserted was justified as the gatekeeping provisions of section 2255 as enacted by the AEDPA barred him from relief under that section.

The government filed a response to the petition suggesting, as we have indicated, that on the merits Nwanze was entitled to relief under Bailey. Nevertheless, it contended that he should pursue that relief in the Eastern District of Virginia either under 28 U.S.C. § 2255 or by filing an application seeking "a writ of error coram nobis, a writ of audita querela, or a writ pursuant to 28 U.S.C. § 1651." App. at 20. Accordingly, the government argued that the district court should dismiss the petition or, alternatively, transfer the case to the Eastern District of Virginia. Significantly, the government pointed out that if the court vacated Nwanze's conviction under section 924(c), he would be exposed to enhancements of his sentencing level, "including, but not limited to a two-point enhancement under U.S.S.G. § 2K2.1," dealing with unlawful receipt, possession or transportation of firearms.

The district court referred the petition to a magistrate judge for a report and recommendation. See Nwanze v. Hahn, 97 F. Supp.2d 665, 666 (W.D. Pa. 2000). In her comprehensive report and recommendation, the magistrate judge described the background of the case and pointed out that "[a]s a general proposition only matters concerning the conditions of confinement or the execution of a sentence are within the subject matter jurisdiction of the court presiding in the district in which a prisoner is incarcerated." Id. at 669 (internal quotation marks omitted). On the other hand, "[c]hallenges to the validity of a federal prisoner's conviction or sentence should be presented to the sentencing court." Id. Thus, the magistrate judge concluded that under section "2241 jurisprudence, the issues raised in [Nwanze's] petition would not usually be within the jurisdiction of [the Western District of Pennsylvania]." Id.

The magistrate judge nevertheless recognized that Dorsainvil stood for the proposition that resort to section 2241 habeas corpus relief was warranted if the Bailey claim otherwise could not be asserted. But the magistrate judge distinguished Dorsainvil on the ground that there, unlike the situation here, two circuits were not involved as "Dorsainvil was tried, convicted and sentenced within the Third Circuit [whereas] Nwanze was tried, convicted and sentenced within the Fourth Circuit and now seeks to have [the Western District] Court to bestow upon him the benefit of the Third Circuit's Dorsainvil decision." Id. at 670.

The magistrate judge next discussed Alamin v. Gerlinski, 30 F. Supp.2d 464 (M.D. Pa. 1998), in which the district court in the Middle District of Pennsylvania, the petitioner's place of confinement, in circumstances mirroring those here, transferred a section 2241 petition to the Western District of North Carolina where the petitioner had been convicted. Following the transfer, the transferee district court granted the petitioner relief and vacated his 60-month sentence for violation of section 924(c) in a situation in which the conviction could not be reconciled with Bailey. The magistrate judge indicated that she was "persuaded by the logic of the Alamin example," Nwanze, 97 F. Supp.2d at 671, and thus she recommended that the court transfer Nwanze's petition to the Eastern District of Virginia. Id. at 672. The district court adopted the magistrate judge's report and recommendation following which Nwanze appealed to this court.

When the clerk of this court examined the notice of appeal, she recognized that inasmuch as ordinarily "orders transferring venue are not immediately appealable," Carteret Sav. Bank v. Shushan, 919 F.2d 225, 228 (3d Cir. 1990), it appeared that we lacked appellate jurisdiction. Consequently, she submitted the case to a panel of this court so that the panel could consider whether to dismiss the appeal. The panel examined the case and determined that we did not have appellate jurisdiction but that we had discretion to treat the notice of appeal as a petition for mandamus. See Nascone v. Spudnuts, Inc., 735 F.2d 763, 773 (3d Cir. 1984). The panel also concluded that inasmuch as it was doubtful that Nwanze could have in the first instance filed his petition for habeas corpus under section 2241 in the Eastern District of Virginia, it appeared "that the District Court might have acted beyond its authority in transferring [his] habeas corpus petition to the sentencing court." Thus, the panel ordered that the notice of appeal be treated as a petition for mandamus. This court then appointed an attorney for Nwanze and, after briefs were filed, entertained oral argument in this matter.

II. DISCUSSION

In considering this matter, we first point out that we are exercising original jurisdiction under 28 U.S.C. § 1651 rather than appellate jurisdiction under 28 U.S.C. § 1291 or some other statutory authority. Consequently, we must be particularly circumspect in our exercise of our authority here. In this regard, we quote our opinion in Hahnemann University Hospital v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996) (internal citations, brackets, and quotation marks omitted):

The writ of mandamus is a drastic remedy that a court should grant only in extraordinary circumstances in response to an act amounting to a judicial usurpation of power. Given its drastic nature, a...