Marshall v. Yost, Civil Action No. 09-62J

• Decision Date: 03 December 2010
• Docket Number: Civil Action No. 09-62J
• Parties: JERMERE MARSHALL, Petitioner v. MR. JOHN YOST, Warden, FCI Loretto, Respondent
• Court: U.S. District Court — Western District of Pennsylvania

JERMERE MARSHALL, Petitioner

v.MR. JOHN YOST, Warden, FCI Loretto, Respondent

Civil Action No. 09-62J

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date: December 3, 2010

MEMORANDUM OPINION AND ORDER

Judge Kim R. Gibson

After entering into a plea agreement, Petitioner Jermere Marshall ("Petitioner") was convicted in the Western District of Virginia for drug possession with intent to deliver. On June 24, 2002, Petitioner was sentenced to 262 months of incarceration (Petitioner's "2002 conviction"). In calculating the sentence, the sentencing court utilized the "career offender" enhancement, pursuant to the then-applicable United States Sentencing Guidelines § 4B1.1. This enhancement was based on two prior State of New Jersey convictions for drug possession with intent to deliver, one in 1995, and the second in 1997 (hereinafter "the 1997 conviction"). On November 6, 2006, subsequent to his conviction and sentencing in the Western District of Virginia, Petitioner's 1997 conviction was vacated in part, i.e., his conviction for possession with intent to deliver was vacated, but his conviction for simple possession was not vacated. See ECF No. 6-1 at 2 to 3 (New Jersey State Court order). The "career offender" designation is reserved for individuals who had prior convictions for drug offenses which involved intent to sell or distribute drugs. The career offender designation does not encompass mere drug possession offenses without the requisite showing of intent to distribute. See, e.g.. United States v. Hernandez, 218 F.3d 272, 276 (3d Cir. 2000) ("a controlled substance offense involving mere possession cannot serve as a predicate offense to establish a defendant's career offender status").

On November 6, 2006, after Petitioner had exhausted his appeal and after his 28 U.S.C. § 2255 motion was denied (in July 2004), a New Jersey State court vacated Petitioner's 1997 conviction. After Petitioner's 1997 conviction was vacated in part by the New Jersey State Court, Petitioner filed a motion for leave to file a second or successive § 2255 motion. This motion, which was filed with the Fourth Circuit Court of Appeals, was denied on August 24, 2007. In re Marshall, 07-236 (4^th Cir. 2007). On March 6, 2009, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2241, seeking to challenge the validity of his sentence, specifically challenging his designation as a career criminal.

As a prerequisite to bringing a § 2241 petition, petitioner must show that § 2255 is inadequate or ineffective. Petitioner has not met this burden; therefore, this Court lacks jurisdiction over Petitioner's § 2241 petition.

A. Discussion

Petitioner seeks to challenge the validity of the sentence imposed. As a general rule, challenges on the validity of the conviction and/or on the validity of the sentence imposed (as opposed to a challenge to the sentence as administered, e.g.. the application of credits to the sentence) are properly brought under a § 2255 petition. See In re Nwanze, 242 F.3d 521, 523 (3d Cir. 2001) ("ordinarily a petitioner should advance a challenge to a conviction and sentence through the means of a motion under § 2255 in the sentencing court.").

In contrast, as a general rule, a petition under § 2241 is properly brought where the petitioner is seeking to challenge administration or execution of the sentence (e.g., the calculation of good time credits, the running of the sentence, the calculation of the ending date, etc.). Braden v. 30^th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); see also Bennet v. Soto, 850 F.2d 161 (3d Cir. 1988), superceded by statute on other grounds as recognized by Callwood v. Enos, 230 F.3d 627 (3d Cir. 2000); see also Bradshaw v. Story, 86 F.3d 164, 166 (10^th Cir. 1996).

However, there are exceptions where a challenge to the validity of the conviction and/or sentence imposed may be brought via a § 2241 petition. A petitioner who wishes to challenge the validity of a conviction and/or the validity of the sentence imposed may not bring a § 2241 Petition until he or she has shown that § 2255 is an inadequate or ineffective remedy. See 28 U.S.C. § 2255 (5^th paragraph); see also In re Dorsainvil, 119 F.3d 245, 247 (3d Cir. 1997). The statutory provisions governing this case provide in pertinent part that

[a]n application for a writ of habeas corpus [i.e., a § 2241 petition¹] on behalf of a prisoner who is authorized to apply for relief by motion [i.e., § 2255 motion] pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255.²

Thus, before petitioners can avail themselves of a § 2241 petition in order to attack the validity of their conviction and/or the sentence, as imposed, they must show that § 2255 is inadequate or ineffective. Pack v. Yusuff, 218 F.3d 448, 452 (5^th Cir. 2000) ("Accordingly, a § 2241 petition that seeks to challenge a federal sentence or conviction-thereby effectively acting as a § 2255 motion-may be entertained only when the petitioner establishes that the remedy provided for under § 2255 is inadequate or ineffective.") (citations omitted). It is the burden of the Petitioner to prove that § 2255 is inadequate or ineffective. Charles v. Chandler, 180 F.3d 753, 756 (6 Cir. 1999) ("It is the petitioner's burden to establish that his remedy under § 2255 is inadequate or ineffective.") (per curiam).

In the instant case, a second § 2255 petition is unavailable to Petitioner, as he does not meet the gate keeping requirements of § 2255(h). § 2255(h) states:

(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

Petitioner is not making a claim of newly discovered evidence, which would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense for which he was convicted in federal court, as required under the saving clause of § 2255(h). Further, the "actual innocence" of the § 2255 saving clause refers to the substantive offense, not a sentencing factor. See, e.g., Green v. Hemingway, 67 F.App'x 255, 257 (6^th Cir. 2003) ("the 'actual innocence' exception of the savings clause of § 2255, as it has been interpreted by this Court, is 'actual innocence of the underlying, substantive offense, not innocence' of a sentencing factor, '"); see also Smith v. United States, 263 F.App'x 853 (11^th Cir. 2008) (the claim that a sentence was unconstitutionally enhanced based on a prior conviction of which the petitioner was actually innocent does not open the door for a § 2241 petition; the saving clause did not apply where defendant's federal sentence was enhanced by a state conviction for a crime of which he was actually innocent because the retroactive Supreme Court decision affecting his state conviction did not render the defendant's conviction in federal court nonexistent). Nor does Petitioner meet the gatekeeping requirements of § 2255 through an applicable new rule of constitutional law directly affecting the 2002 conviction which has been made retroactive by the Supreme Court. Thus, Petitioner cannot meet the gatekeeping requirements necessary to bring a second or successive § 2255 petition.

However, mere inability to meet § 2255's gatekeeping requirements does not satisfy a petitioner's burden of showing that § 2255 is inadequate or ineffective for purposes of bringing a § 2244 motion. As stated in Dorsainvil, "We do not suggest that § 2255 would be 'inadequate or ineffective' so as to enable a second petitioner to invoke § 2241 merely because that petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. Such a holding would effectively eviscerate Congress's intent in amending § 2255." 119 F.3d at 251; see also Pack v. Yusuff, 218 F.3d at 453;³ citing 104 P.L. 132, 110 Stat. 1214 (1996); see also Charles v. Chandler, 180 F.3d 753, 755 (6^th Cir. 1999) ("Significantly, the § 2255 remedy is not considered inadequate or ineffective simply because § 2255 has already been denied... or because the petitioner has been denied permission to file a second or successive motion to vacate....." (citations omitted)).

In the instant case, the only suggestion by Petitioner as to why § 2255 is inadequate or ineffective is that he is unable to bring a second or successive § 2255 petition and it is unfair that he should be made to serve a sentence that is longer than it would otherwise have been but for the career criminal enhancement, which in turn relied upon the 1997 conviction, that is no longer valid. As explained above, caselaw demonstrates that such a showing is not sufficient for the Petitioner to carry his burden of proving that § 2255 is inadequate or ineffective so that he can properly proceed under § 2241.

Further, Petitioner contends that he comes within the ambit of Dorsainvil and thereby shows that § 2255 is inadequate or ineffective. However, Dorsainvil does not compel this Court to conclude that Petitioner has established the inadequacy of § 2255.

In Dorsainvil, the defendant was convicted under 18 U.S.C. § 924(c)(1), which "imposes punishment upon a person who 'during and in relation to any... drug trafficking crime'... uses or carries a firearm." Dorsainvil at 247. Subsequent to the...