U.S. v. White, Cv. 99-2504-D/V.

• Decision Date: 28 June 1999
• Docket Number: No. Cr. 91-00106.,No. Cv. 99-2504-D/V.,Cv. 99-2504-D/V.,Cr. 91-00106.
• Citation: 53 F.Supp.2d 976
• Parties: UNITED STATES of America, Plaintiff, v. Rodney E. WHITE, Defendant.
• Court: U.S. District Court — Western District of Tennessee

53 F.Supp.2d 976

UNITED STATES of America, Plaintiff, v. Rodney E. WHITE, Defendant.

No. Cv. 99-2504-D/V.

No. Cr. 91-00106.

United States District Court, W.D. Tennessee, Western Division.

June 28, 1999.

Rodney E. White, FCI-Memphis, Federal Correctional Institution, Memphis, TN, petitioner pro se.

ORDER CONSTRUING HABEAS PETITION AS SECTION 2255 MOTION AND ORDER TRANSFERRING MOTION TO UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DONALD, District Judge.

Defendant, Rodney E. White, Bureau of Prisons (BOP) registration number 32695-083, an inmate at the Federal Correctional Institution at Memphis (FCI), has filed a second document styled as a petition under 28 U.S.C. § 2241.

In 1991, a grand jury the United States District Court for the Eastern District of Virginia at Richmond indicted White and twelve codefendants on charges of conspiring to distribute over five kilograms of cocaine, more than fifty grams of cocaine base, and over one kilogram of heroin, in violation of 21 U.S.C. § 846, three counts of possession of cocaine and cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one count of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The jury convicted White of the conspiracy, possession with intent to distribute cocaine, possession with intent to distribute cocaine base, and the firearm offense. Defendant appealed and the Fourth Circuit affirmed his conviction. United States v. White, No. 92-5101, 996 F.2d 1213, 1993 WL 239009 (4th Cir. June 30, 1993).

White thereafter filed his first § 2255 motion with the sentencing court attacking his conviction. The district court denied that motion. United States v. White, No. 91-106 (E.D.Va. Mar. 29, 1995).¹ White thereafter filed two motions in the United States Court of Appeals for the Fourth Circuit seeking permission to file a successive motion under 28 U.S.C. § 2255 to raise claims under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The Fourth Circuit denied these motions. In re White, No. 96-666 (4th Cir. July 1, 1997) (denying permission to file successive motion); In re White, 98-646 (4th Cir. Nov. 17, 1998) (same).

White then submitted to this Court a habeas petition and supplemental petition under 28 U.S.C. § 2241. This Court construed the habeas petition as yet another successive § 2255 motion and transferred it to the Fourth Circuit. United States v. White, No. 98-3043-Ml/V (W.D.Tenn. Dec. 30, 1998). That Court again denied White's motion. In re White, No. 99-606 (4th Cir. Feb. 11, 1999) (denying permission to file successive motion) In the meantime, White took a frivolous appeal of this Court's transfer order to the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit dismissed the appeal. United States v. White, No. 99-5045 (6th Cir. Feb. 10, 1999).

Now White has filed yet another petition. He attempts to rely on this Court's previous citation to United States v. Jalili, 925 F.2d 889, 893 (6th Cir.1991), and Wright v. United States Bd. of Parole, 557 F.2d 74, 78 (6th Cir.1977) which together hold that "[s]ection 2255 ... has been conceived to be limited to those claims which arise from the imposition of the sentence as distinguished from claims attacking the execution of the sentence." Id. at 77. He attempts to transmogrify his claim into an attack on the execution of his sentence by claiming that since he is "actually innocent" any execution of his sentence must be unconstitutional.

This is the type of sophistry that has aroused the federal court's impatience with prisoners' attempting to play at being lawyers. The gravamen of a § 2255 motion is a challenge to the very fact of the conviction itself — the precise thing that defendant attacks. Wright and Jalili use the word "execution" not to refer to the fact of imprisonment that inevitably follows conviction, but to the manner in which the United States Bureau of Prisons (BOP) implements that imprisonment. As is very clear from an honest reading of the habeas jurisprudence, as opposed to the defendant's disingenuous attempt to manipulate semantics, habeas "execution" of sentence claims deal with BOP decisions regarding the calculation of sentence credits, the ministerial calculation of the dates of release or completion of the sentence, and other issues unrelated to the validity of the conviction or sentence itself. See In re Hanserd, 123 F.3d 922, 933 (6th Cir.1997).

Defendant also argues that this Court misapplied Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988), when it cited that case in support of the proposition that the § 2255 remedy is not inadequate or unavailable merely because a court denied a previous § 2255 motion. Defendant points out that Tripati requires a denial "on the merits" and then argues he has never had a merits review of his Bailey claim. Again, this completely misconstrues the existing jurisprudence on the remedies available to federal prisoners. The limits on successive petitions in § 2255 specifically contemplate cutting off further collateral attacks on review of the merits of a conviction. In effect, the denial of a motion on these grounds is akin to the denial of a habeas petition or § 2255 motion for procedural default. Such a decision is one on the merits of a claim of interference with a federal constitutional right. Carter v. United States, 150 F.3d 202, 205-06 (2d Cir.1998) (holding that AEDPA strengthens pre-AEDPA decisions requiring successive petition treatment); Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir.1990).² Defendant has had a decision on the merits of his Bailey claim because the United States Court of Appeals for the Fourth Circuit has held three times that he has no constitutional right to consideration of that claim.

Accordingly, it is plain that defendant again challenges the very fact of his conviction, not merely how his valid federal sentence is being implemented by the BOP. For federal prisoners seeking habeas-type relief, the only remedy is through a motion to vacate under 28 U.S.C. § 2255. Hanserd, 123 F.3d at 933; United States v. Sarduy, 838 F.2d 157, 158 (6th Cir.1988) (challenge to proper sentence calculation should be brought under § 2255, not Rules 32 or 35). See also United States v. Cerna, 36 F.3d 1098, 1994 WL 542757 at *1 (6th Cir. Oct. 4, 1994) (district court has discretion to construe motion erroneously styled as one under § 3582(c)(2) as a motion to vacate under § 2255);³ United States v. Auman, 8 F.3d 1268, 1271 (8th Cir.1993); Wood v. United States, 956 F.2d 271, 1992 WL 34342, No. 91-2055 (6th Cir. Feb. 25, 1992) (petition for a writ of error coram nobis should be construed as motion under § 2255);⁴ Owens v. Benson, 439 F.Supp. 943, 944 (E.D.Mich.1977) (the proper remedy for a federal prisoner attacking his conviction or sentence is a motion under § 2255). Cf. Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir.1998) (adopting per se rule that district court may not consider a § 2255 motion while prisoner's direct appeal is pending and affirming denial of habeas relief to prisoner whose direct appeal was pending in Fifth Circuit).

As this Court held in its earlier order, White's § 2255 motion must be directed to the sentencing judge, not to a judge in the district in which a prisoner is confined. This remedy is not inadequate or ineffective merely because White is confined outside the Eastern District of Virginia or because that court denied his earlier motions. White has not properly alleged that the remedy by motion under § 2255 is inadequate or ineffective in his case. Cf. Tripati, Yankey v. United States, 290 F.2d 816 (6th Cir.1961); Broadus-Bey v. Diamond, 264 F.2d 242, 243 (6th Cir.1959). See also McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.1979).

As a motion under § 2255 is properly addressed to the sentencing court, this Court should transfer this case to that Court. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, Title I, § 102, 110 Stat. 1220 (Apr. 24, 1996), amended 28 U.S.C. §§ 2244(b) and 2255 to preclude the filing of any subsequent § 2255 motion absent permission from the Court of Appeals for the Circuit in which the district court is located. Under In re Sonshine, 132 F.3d 1133, 1135 (6th Cir.1997), the AEDPA amendments bar a prisoner from filing a second § 2255 motion unless those amendments would have an impermissibly retroactive effect on a claim for relief under § 2255. Under In re Sims, 111 F.3d 45, 47 (6th Cir.1997), "when a second or successive ... § 2255 motion is filed in the district court without § 2244(b)(3) authorization from [the Sixth Circuit], the district court shall transfer the document to this court pursuant to 28 U.S.C. § 1631." Id. As petitioner was sentenced in the Eastern District of Virginia, and as that district is within the Fourth Circuit, White cannot file another § 2255 motion without permission from the Fourth Circuit. Accordingly, it is in the interests of justice that this case be transferred to the appropriate appellate court. See 28 U.S.C. § 1404(a); Rule 12, Rules Governing Section 2255 Proceedings in the United States District Courts.

It is therefore ORDERED that the Clerk shall immediately transfer this case to the United States Court of Appeals for the Fourth Circuit at Richmond. The Clerk shall not provide a copy to the United States Attorney, as the necessity for such notice is better determined by the appropriate appellate court. It is ORDERED that the United States need not file a response to the motion until so ordered by the appellate or sentencing court.

As this case is not being closed, but only transferred, there is no final order from which an appeal can be taken. The majority view of the federal appellate courts is that an order of transfer under 28 U.S.C. § 1631 is a non-appealable collateral order. See, e.g., FDIC v. McGlamery, 74 F.3d 218, 221-22 (10th...