NEEDREPLACE

• Decision Date: 25 March 2014
• Docket Number: Civil Action No. 13–11364–JGD.
• Citation: 7 F.Supp.3d 125
• Parties: Jackie McKUBBIN, Petitioner, v. Jeffrey GRONDOLSKY, Warden, Respondent.
• Court: New York District Court

7 F.Supp.3d 125

Jackie McKUBBIN, Petitioner,
v.
Jeffrey GRONDOLSKY, Warden, Respondent.

Civil Action No. 13–11364–JGD.

United States District Court, D. Massachusetts.

Signed March 25, 2014

Government's motion granted; petition denied.

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Jackie McKubbin, Ayer, MA, pro se.

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Emily O. Cummings, U.S. Attorney's Office, Boston, MA, for Jeffery Grondolsky.

MEMORANDUM OF DECISION AND ORDER ON MOTION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
DEIN, United States Magistrate Judge.
I. INTRODUCTION

On January 4, 1995, the petitioner, Jackie McKubbin, was one of twenty defendants indicted in the United States District Court for the Western District of North Carolina for controlled substances and firearms violations. ( United States v. Hall, et al, No. 3:95cr5–03).¹ He entered into a plea agreement and pleaded guilty on March 13, 1995 to conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1), and to having transferred a firearm with the intent that it be used to commit a drug trafficking offense, in violation of 18 U.S.C. §§ 924(h) and 924(a)(3) (Count 19). (WDNC Docket Nos. 111, 135). On September 29, 1995, he was given a mandatory life sentence on Count 1, and a 10 year concurrent sentence on Count 19. (WDNC Docket No. 272, 797 at 2). On August 27, 2009, his life sentence was reduced to 360 months due to a retroactive crack cocaine amendment to the Sentencing Guidelines. (WDNC Docket No. 827). The 10 year concurrent sentence remained unchanged. ( Id.). McKubbin is presently serving this sentence at Federal Medical Center (“FMC”) Devens in Massachusetts.

This matter is presently before the court on McKubbin's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Docket Nos. 1, 11), and the government's Motion to Dismiss the Petition (Docket No. 18). In his Petition, McKubbin alleges that he was improperly classified as a career offender, since one of the predicate convictions on which that classification was based has been dismissed. McKubbin has asked this court to resentence him. In addition, McKubbin argues that his claim is properly brought pursuant to 28 U.S.C. § 2241 because § 2255 “is inadequate or ineffective.” (Docket No. 11). The government opposes the Petition, contends that the claim raised is appropriately brought before the sentencing court under 28 U.S.C. § 2255, and has moved to dismiss the § 2241 Petition on the grounds that this court “lacks jurisdiction over this legally barred petition for habeas corpus [.]” (Gov't Mem. at 1).

As detailed herein, McKubbin has unsuccessfully raised the same claim on a number of occasions before the United States District Court for the Western District of North Carolina, as well as before the Fourth Circuit. In addition, he has brought the same claim in a petition pursuant to 28 U.S.C. § 2241 in the United States District Court for the Northern District of Alabama, Eastern Division, while he was incarcerated at the Federal Correctional Institution at Talladega, Alabama. ( McKubbin v. Warden John Rathman, Docket No. 10–cv–01207–RBP–RRA). The Alabama court concluded that the claim could not be brought under § 2241 and it was dismissed. ( Id. at Docket Nos. 17, 22).

For the reasons detailed herein, this court also concludes that the claim that McKubbin was improperly sentenced as a career offender must be presented to the

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sentencing court. Moreover, based on the record before this court, it appears that McKubbin's sentence is within the guideline range, even if he is not considered a career offender. There is no evidence of a miscarriage of justice or any other basis for this court to interfere with the sentencing calculations done by the sentencing court.² Since this court lacks jurisdiction to revise his sentence, the Respondent's Motion to Dismiss (Docket No. 18) is ALLOWED, and the Petition is dismissed without prejudice.

II. STATEMENT OF FACTS

This recitation of facts is limited to those that are relevant to the Petition and Motion to Dismiss pending before this court.

As detailed above, McKubbin pleaded guilty to drug and firearm charges, and was sentenced as a career offender on September 8, 1995 to life imprisonment, with a 10 year concurrent sentence on the firearm charge. In connection with the sentencing, and in accordance with his plea agreement, the North Carolina court calculated that McKubbin's total adjusted offense level was 43.³ The court also concluded that he was a career offender, as a result of which his criminal history category was VI. ( See 4/8/09 Order (WDNC Docket No. 797) at 2; U.S. Sentencing Guidelines Manual § 4B1.1(b)(a) (career offender's criminal history category is Category VI)). His career offender status was based on his prior conviction for a controlled substance offense and for an assault on a female. ( See WDNC Docket No. 834 at 2). This latter conviction was dismissed by the North Carolina District Attorney's Office in July 2008, and this dismissal forms the basis of McKubbin's present § 2241 Petition. ( See Docket No. 1). At the time of sentencing, however, McKubbin's status as a career offender was irrelevant to his offense level, since the offense level for a career offender was less than his offense level of 43. ( See WDNC Docket No. 834 at 2 (quoting PSR)). Further, his category level did not affect the length of his sentence.

	Base Offense Level	38
Firearm	+2
Supervisory Role	+2
Offense Near School	+2
Failure to Report	+2
46
Acceptance of Responsibility	–3
43

( See WDNC Docket No. 834 at 2–3).

McKubbin did not appeal his original conviction or sentence. Rather, on April 10, 1996, he filed his first Motion to Vacate pursuant to 28 U.S.C. § 2255, and began what the North Carolina District Court has described as “his assiduous pursuit of collateral relief[.]” ( See WDNC Docket No. 797 at 2). While the details of this lengthy history need not be repeated here, it is significant that the issue whether

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McKubbin was improperly characterized as a career offender following the dismissal of the assault on a female charge in July 2008 was raised before the North Carolina District Court and the Fourth Circuit.

Specifically, on January 26, 2009, McKubbin filed a successive petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 with the North Carolina District Court. ( See WDNC Docket Nos. 795, 797).⁴ Therein, he contended that he was “entitled to be re-sentenced because a 1986 conviction for assault-on-a-female which he reportedly sustained under the alias ‘William Charles Gilchrist’ (in the Superior Court of Mecklenburg County) recently was vacated.” (WDNC Docket No. 797 at 4). The District Court ruled that, “notwithstanding his strong belief in its potential merit[,]” McKubbin was “not entitled to proceed on this successive motion” since he had not obtained authorization from the Court of Appeals, as required by 28 U.S.C. § 2244(b)(3)(A). ( Id.). Therefore, on April 8, 2009, 2009 WL 971472, the “successive, unauthorized Motion to Vacate” was dismissed without prejudice. ( Id. at 5).

Several months later, on August 27, 2009, the North Carolina District Court reduced McKubbin's life sentence to a sentence of 360 months based on amendment 706 to the Sentencing Guidelines relating to crack cocaine, which reduced his offense level from 43 to 41, but maintained his criminal history category at VI. (WDNC Docket No. 827).⁵ At this time, McKubbin's status as a career offender remained irrelevant, since with an offense level of 41, the guideline range was 360 months to life, regardless whether McKubbin was classified as Category II or VI.

McKubbin filed a motion to reconsider the reduction in his sentence, asking that the court exercise its discretion and reduce his sentence further pursuant to 18 U.S.C. § 3582(c)(2) due to disparity in the guidelines between powder cocaine and crack cocaine. (WDNC Docket No. 834).⁶ In his motion, McKubbin noted that he should not be considered a career offender, since his conviction for assault on a female had been dismissed, but noted further that he “will save that argument for another day[.]” ( Id. at 5). His motion for reconsideration was denied by the District Court on October 8, 2009. (WDNC Docket No. 835). Subsequent efforts to have his sentence reduced pursuant to 18 U.S.C. § 3582(c)(2) were also denied, with the North Carolina District Court noting that McKubbin's offense level had been reduced to 41, that his sentence had been reduced to 360 months, and that the reduced sentence was within the amended guideline range. ( See, e.g., Order of 3/23/10 (WDNC Docket No. 844)). Following its review of the record, the Fourth Circuit found “no abuse of discretion and no reversible error” in the District Court's refusal to further reduce McKubbin's sentence. (6/15/10 Unpub. Op. (WDNC Docket No. 854) at 2; see also 10/8/10 Unpub. Op. (WDNC Docket No. 857) at 2).

In August 2011, McKubbin sought leave from the Fourth Circuit to pursue a successive petition under 28 U.S.C. § 2255

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challenging his status as a career offender based on the dismissal of his state law conviction for assault on a female. (WDNC Docket No. 863). Therein, he argued that he was “actually innocent of being a career criminal” and therefore should be able to proceed with a § 2255 Petition. ( Id. at 9 of 16). He raised the issue again on November 14, 2011 in a “Motion for Reduction of Defendant's Sentence Pursuant to 18 U.S.C. § 3582(c)(2) in Light of Amendment 750.” (WDNC Docket No. 869). Amendment 750 to the Sentencing Guidelines, which became effective on November 1, 2011, lowered the sentencing range for crack cocaine.⁷ Thus, McKubbin argued that applying the Amendment would reduce his offense level to 39, and his criminal history to Category II, for a guideline range of 292–365 months. ( I...