Norton v. U.S.

• Citation: 119 F.Supp.2d 43
• Decision Date: 26 October 2000
• Docket Number: Civil Action No. 00-12199-WGY.,Civil Action No. 00-12198-WGY.
• Parties: Timothy P. NORTON, Plaintiff, v. UNITED STATES of America, Defendant. Daniel D. Tavares, Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

119 F.Supp.2d 43

Timothy P. NORTON, Plaintiff, v. UNITED STATES of America, Defendant.

Daniel D. Tavares, Plaintiff, v. United States of America, Defendant.

Civil Action No. 00-12198-WGY.

Civil Action No. 00-12199-WGY.

United States District Court, D. Massachusetts.

October 26, 2000.

Timothy P. Norton, Fairton, NJ, pro se.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

The word is out. The Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is making the rounds of the nation's prisons. These two self-prepared holographic petitions are like the first spattering rain drops of the coming shower. The Court addresses these two petitions in the order in which they were filed.

TIMOTHY NORTON'S PETITION

Timothy Norton ("Norton") has petitioned this Court both for release from custody and for appointment of an attorney to present his challenge to his sentence. Norton claims that he is entitled to release because, contrary to the Supreme Court's new rule of law established in Apprendi that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt," id. at 2355 (quoting Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)), this Court increased Norton's sentence based upon findings made by the Court rather than by a jury and the Court's determination was made by a preponderance of the evidence rather than beyond a reasonable doubt. Moreover, Norton claims that his indictment was insufficient because it did not charge all facts that could have increased the maximum penalty for his crime.

I. Background

Norton was tried and convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, this Court concluded that Norton qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because of his numerous violent felony and serious drug convictions. As a result, this Court sentenced Norton to the mandatory minimum sentence under 18 U.S.C. § 924(e)—fifteen years. Norton has previously challenged his conviction in a habeas petition on the grounds that he was improperly considered as a felon under the meaning of the federal firearms statute, he was denied effective assistance of counsel, and this Court improperly relied on his state guilty plea in sentencing him under section 924(e). Norton v. United States, Civ. A. NO. 96-12244-WGY, 1997 WL 305222, at *1 (D.Mass. May 12, 1997). This Court denied his first habeas petition on all grounds. Id. at *5.

II. Analysis

A. Petition Under Section 2255

Because Norton has previously filed a habeas petition,¹ this Court must dismiss his present habeas petition for lack of jurisdiction. Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a prisoner may file a second or successive section 2255 petition only if the court of appeals first certifies that the petitioner's claim relies on either:

(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. Under this mandate, AEDPA creates "pre-clearance provisions" that are "an allocation of subject-matter jurisdiction to the court of appeals." Barrett, 178 F.3d at 41 (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)). Thus, this Court has no choice but to dismiss Norton's habeas petition for want of subject matter jurisdiction pursuant to AEDPA.

B. Petition Under Section 2241

Even if this Court were to construe Norton's claim as a challenge of his sentence pursuant to section 2241,² this Court is unable to reach the merits of such a claim because it lacks jurisdiction over Norton's custodian. Jurisdiction under section 2241 properly lies in the district court with jurisdiction over the prisoner's custodian. Barrett, 178 F.3d at 50 n. 10; United States v. Glantz, 884 F.2d 1483, 1489 (1st Cir.1989) ("Motions under [§ 2241] must be brought before a district court that has jurisdiction over the prisoner or his custodian." [citing Thompson v. United States, 536 F.2d 459, 460-61 (1st Cir.1976)]).

Moreover, even when the petitioner challenges the validity rather than the execution of his sentence in a petition under section 2241, jurisdiction lies, not in the sentencing court as per section 2255, but in the district court that has jurisdiction over the custodian. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir.2000) (per curiam) (holding that only the district court in which prisoner is confined has jurisdiction to hear claim under section 2241, even when challenging the validity of the sentence); Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir.1999) (per curiam) (holding that judicial determination of whether prisoner is entitled to bring section 2241 petition must be made in the district in which he is confined); Barrett, 178 F.3d at 50 n. 10 (noting in dicta that, even when petitioner is challenging the validity of his sentence under section 2241 rather than the execution of that sentence, jurisdiction under section 2241 properly lies in the district court with jurisdiction over the prisoner's custodian); Dorsainvil, 119 F.3d at 252 (suggesting that even when petitioner challenges the validity of his sentence, a petition under section 2241 should be brought in the district of his confinement). But see Vasquez v. Reno, 97 F.Supp.2d 142, 149-51 (D.Mass.2000), appeal pending, No. 00-1505 (1st Cir.2000) (holding that jurisdiction lies in District of Massachusetts because Attorney General, and not merely the I.N.S. District Director of the detention facility, was the custodian of the I.N.S. detainee). Thus, because Norton is in custody in New Jersey, this Court does not have jurisdiction over any section 2241 claim that he might have.

C. Appointment of an Attorney

This Court has the authority to appoint an attorney for a financially eligible person seeking relief under sections 2241 or 2255 upon the determination that the interests of justice so require. 18 U.S.C. § 3006A(a)(2)(B). Norton has no claim over which this Court has jurisdiction. The assistance of counsel would not aid petitioner before this Court. Accordingly, the interests of justice do not require appointment of counsel to Norton in this matter. See Talbott v. Lappin, No. TH00-0184-C-T/F, 2000 WL 1124950, at *1 (S.D.Ind. July 31, 2000) (denying appointment of counsel when court lacked jurisdiction to hear petitioner's habeas petition).³

III. Conclusion

Pursuant to Rule 4 of the Supplementary Rules Governing Habeas Proceedings, this Court sua sponte dismisses Norton's claim for relief under section 2255 for want of subject matter jurisdiction. This Court also dismisses any claim that Norton would have under section 2241 for want of jurisdiction. Norton's petition for appointment of an attorney is denied.

DANIEL TAVARES' PETITION

Daniel D. Tavares ("Tavares") has petitioned this Court for release from custody pursuant to the All Writs Act. Like Norton, Tavares claims that, contrary to Apprendi, this Court increased his sentence beyond the statutory maximum based upon findings made by the Court by a preponderance of the evidence rather than by a jury beyond a reasonable doubt. Moreover, Tavares claims that his indictment was insufficient because it did not charge all facts that could have increased the maximum penalty for his crime.

I. Background

Tavares was convicted of being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). The statutory maximum for a violation of § 922(g)(1) is ten years. 18 U.S.C. § 924(a)(2) ("Whoever knowingly violates subsection [(g)] of section 922 shall be ... imprisoned not more than 10 years ...."). The applicable guideline for his offense was U.S.S.G. § 2K2.1 (Nov.1990). This Court then enhanced his sentence pursuant to U.S.S.G. § 2A2.2 on the ground that Tavares committed an assault with the intent to do bodily harm and pursuant to U.S.S.G. § 4A1.3 on the ground that his criminal history category did not adequately reflect the seriousness of his past criminal conduct. This Court sentenced Tavares to ten years imprisonment. United States v. Tavares, No. 96-2247, 114 F.3d 1170, 1997 WL 282859, at *1 (1st Cir. May 29, 1997). The First Circuit affirmed Tavares' sentence, rejecting his arguments raised on appeal that the upward departures and application of the aggravated assault guideline were inappropriate. Id.

II. Analysis

Tavares seeks relief under the All Writs Act, 28 U.S.C. § 1651.⁴ The "All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute." Barrett, 178 F.3d at 55 (quoting Carlisle v. United States, 517 U.S. 416, 429 (1996)). In this instance, sections 2255 and 2241 are the applicable statutes, yet neither section is operative here.

Tavares has been a frequent litigant in this Court. Tavares v. Massachusetts, 59 F.Supp.2d 152, 155 n. 2 (D.Mass.1999) (describing numerous claims that Tavares has filed in federal court). He has sought to challenge his federal sentence as well as his prior state convictions. Significantly, he has twice challenged his federal sentence pursuant to section 2255. His first petition challenging his sentence was dismissed as premature because his appeal was pending. Tavares v. United States, 914 F.Supp. 732, 732 (D.Mass.1996). His second petition was dismissed as an abuse of the writ. Tavares v. Rardin, No. 97-12760 (D.Mass. Jan. 6, 1998). For the same reasons articulated...