Nwanze v. Hahn

• Decision Date: 27 April 2000
• Docket Number: C.A.No. 98-25.
• Parties: Austen O. NWANZE, Petitioner, v. John HAHN, Warden, Respondent.
• Court: U.S. District Court — Western District of Pennsylvania

97 F.Supp.2d 665

Austen O. NWANZE, Petitioner, v. John HAHN, Warden, Respondent.

C.A.No. 98-25.

United States District Court, W.D. Pennsylvania.

April 27, 2000.

Austen O. Nwanze, pro se.

Paul J. Brysh, Tina M. Oberdorf, U.S. Attorney's Office, Pittsburgh, PA, for Respondent.

MEMORANDUM ORDER

McLAUGHLIN, District Judge.

On January 16, 1998, Petitioner Austen Nwanze filed the instant petition for writ of habeas corpus. This matter was assigned to United States District Judge Sean J. McLaughlin and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

On March 21, 2000, Magistrate Judge Baxter issued a Report and Recommendation recommending that the petition be transferred to the United States District Court for the Eastern District of Virginia. Petitioner filed objections to the Magistrate Judge's Report and Recommendation. Respondent filed a response to Petitioner's objections.

AND NOW, this 27th day of April, 2000;

Following a de novo review of the record in this case,

IT IS HEREBY ORDERED that the Report and Recommendation by Magistrate Judge Baxter be adopted as the opinion of this Court.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BAXTER, United States Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the instant petition for writ of habeas corpus be transferred to the United States District Court for the Eastern District of Virginia. A certificate of appealability should be denied.

II. REPORT

A. Relevant Factual and Procedural History

Austen O. Nwanze, a federal prisoner at the Federal Correctional Institution at McKean ("FCI-McKean") in Bradford, Pennsylvania, brings this petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging his conviction and sentence imposed in the Eastern District of Virginia for using or carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Petitioner claims that based on Bailey v. U.S., 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), his conviction for violating 18 U.S.C. § 924(c) is invalid.

Respondent concedes 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. [Because Nwanze's conviction is a Fourth Circuit conviction, the validity of that conviction is governed by Fourth Circuit law.] See United States v. Hayden, 85 F.3d 153 (4th Cir.1996) and United States v. Mitchell, 104 F.3d 649 (4th Cir.1997). "Use" and "carry" within the statute prohibiting use or carrying a firearm during drug trafficking are distinct and different from mere "possession," and inert presence of firearm, without more, is not enough to trigger the offense. Hayden, at 162.

Document # 6, page 13.

According to Respondent, the facts presented at trial in this case are as follows. In the early morning hours of December 10, 1991, officers with the Richmond Police Department entered the home of the Petitioner, a single-story dwelling containing two bedrooms. After a quick knock on the door, the police announced themselves and hit the door with a "ram." The officers entered the premises and began to search. There were three occupants in the house. Petitioner Nwanze was found sitting on the bed with a female companion in one of the rooms. Standing in the hallway by the front door was a third individual. Petitioner was dressed in his undershorts and a t-shirt, while the female companion and the third occupant were also dressed.

A search of the premises revealed narcotics and firearms in several locations. Found in the kitchen, next to a tire was a bag of "crack" cocaine. Next to the cocaine was a loaded Stallard 9mm firearm. In the bedroom where Petitioner was found, there was an unloaded Ruger 9mm pistol along with clips of ammunition for the pistol. In the southeast corner of the same room was a .25 caliber Raven Arms pistol. No testimony was offered at trial concerning Petitioner's "use" or "carrying" of the firearms.

On June 8, 1992, after a jury trial Petitioner was sentenced in the U.S. District Court for the Eastern District of Virginia to one hundred sixty-eight months for violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(1)(B), possession of a firearm by previously convicted felon, and up to sixty months for violation of 18 U.S.C. § 924(c), possession of a firearm during drug trafficking crime. Originally, the three terms were set to run concurrently. However, on January 6, 1993, the judgment order was amended to reflect that the sixty month term was to run consecutively to the other counts.

Petitioner appealed his conviction to the United States Court of Appeals for the Fourth Circuit challenging the sufficiency of the evidence to sustain his 924(c) conviction. Applying the then-existing Fourth Circuit interpretation of 924(c), the conviction and sentence were affirmed.

Subsequently, Petitioner filed a motion under 28 U.S.C. § 2255 in the United States District Court for the Eastern District of Virginia, raising claims other than the one at issue here. The motion was denied by the district court and Petitioner appealed to the Fourth Circuit. On September 8, 1995, the Fourth Circuit affirmed the district court's denial.

On December 6, 1995, the U.S. Supreme Court issued a decision in Bailey v. U.S., 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which set forth a new and narrower interpretation of section 924(c). At issue was the language of 18 U.S.C § 924(c)(1), which imposes punishment upon a person convicted of a drug trafficking crime who uses or carries a firearm. Id. The Supreme Court held that a defendant could not be convicted of using a firearm unless the government proved that the defendant actively employed the firearm during and in relation to the predicate crime. Id.

On June 19, 1996, Petitioner filed his second § 2255 motion in the United States District Court for the Eastern District of Virginia challenging his conviction and sentence in light of the Bailey decision. Petitioner argued that, based on the record from his original trial, the government's evidence was insufficient to satisfy the elements of a section 924(c) offense as those elements were more narrowly redefined under Bailey. Before filing his second 2255 motion with the district court, Petitioner failed to comply with the gatekeeping provision of the AEDPA¹. On July 5, 1996, Petitioner filed a motion in the United States Court of Appeals for the Fourth Circuit pursuant to the gatekeeping provisions of AEDPA seeking leave to file his second 2255 motion in the district court.

On July 24, 1996, the district court dismissed Petitioner's 2255 motion until the Fourth Circuit authorized the filing of a second petition. On August 1, 1996, the United States Court of Appeals for the Fourth Circuit denied Petitioner's motion to file a successive 2255 petition in the district court.

On October 2, 1996, the district court denied Petitioner's motion for reconsideration, and on October 15, 1996, Petitioner filed a notice of appeal appealing that order. On September 19, 1997, the Fourth Circuit affirmed the district court decision of October 2, 1996.

On January 16, 1998, the instant petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241.

B. Claims Cognizable in Federal Habeas Corpus Proceedings

A prisoner may seek federal habeas relief only if he is in custody in violation of the Constitution or federal law. 28 U.S.C. § 2254(a); Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Geschwendt v. Ryan, 967 F.2d 877 (3d Cir.), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 379 (1992); Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 232 (1991). Violations of state law or procedural rules alone are not sufficient; a petitioner must allege a deprivation of federal rights before habeas relief may be granted. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wells v. Petsock, 941 F.2d 253 (3d Cir.1991), cert. denied, 505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 906 (1992). The purpose of a writ of habeas corpus is to challenge the legal authority under which a prisoner is held in custody. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)(the unique purpose of habeas corpus is to release the applicant for the writ from unlawful confinement); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)(basic purpose of the writ is to enable those unlawfully incarcerated to obtain their freedom); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); United States v. Hollis, 569 F.2d 199, 205 (3d Cir.1977). The writ supplies the mechanism by which prisoners may challenge the length of their custodial term. Fields v. Keohane, 954 F.2d 945, 949 (3d Cir.1992); Barden v. Keohane, 921 F.2d 476 (3d Cir.1990). The remedy is to free an inmate from unlawful custody.

A writ of habeas corpus is the proper vehicle through which a prisoner may challenge not only his sentence, but also the length of his confinement. Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir.1993), citing Preiser, 411 U.S. at 489-490, 93 S.Ct. 1827. Habeas corpus is the exclusive remedy for a prisoner who challenges the fact or duration of his confinement and seeks as his relief immediate or speedier release from confinement. Heck, 512 U.S. at 480, 114 S.Ct. 2364, explaining Preiser, 411 U.S. at 490, 93 S.Ct. 1827. A violation of a prisoner's liberty interest may be addressed by a writ of habeas corpus only to the extent that the alleged violation impacts a prisoner's length of confinement. Wolff, 418 U.S. at 539, 94 S.Ct. 2963; Cardenas v. Wigen, ...