United States District Court, D. Connecticut
ORDER OF TRANSFER
A. Bolden United States District Judge
in this Court (Nevas, J.) of eight counts, including charges
of racketeering, RICO conspiracy, drug conspiracy,
obstruction of justice, witness tampering, and conspiracy to
commit money laundering, Petitioner Quinne Powell is serving
five concurrent life sentences, two concurrent ten-year
sentences, and one concurrent twenty-year sentence, and is
incarcerated at the Federal Correctional Institution Hazelton
in Bruceton Mills, West Virginia. For the second time, Mr.
Powell has filed a petition for writ of habeas corpus
challenging his conviction.
December 31, 2009, Mr. Powell filed a petition for writ of
habeas corpus under 28 U.S.C. § 2255 challenging his
conviction. On May 26, 2011, this Court (Dorsey, J.) signed
an order denying the petition on the merits. See Powell
v. United States, No. 3:09-cv-2141, Doc. No. 21 (D.
Conn.). This Court (Burns, J.) denied Mr. Powell’s
motion for reconsideration of this decision on October 10,
2014. See id., Doc. No. 45. On May 20, 2015, the
Second Circuit issued a mandate dismissing Mr. Powell’s
appeal of both these denials. See id., Doc. No. 53.
Mr. Powell now has filed the present federal habeas petition,
purportedly under 28 U.S.C. § 2241. In it, Mr. Powell
argues that two recent Supreme Court decisions have
substantively changed the law and that the conduct for which
he was convicted no longer constitutes criminal offenses.
the “gatekeeping provisions” of section 2255, a
may only bring a second (or ‘successive’) motion
to vacate, set aside, or correct a federal conviction or
sentence . . . if a Court of Appeals certifies, as provided
in § 2244, that the motion contains: (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
Love v. Menifee, 333 F.3d 69, 72 (2d Cir. 2003). The
statutes do not define “second or successive.”
Nevertheless, courts considering this question have held that
for a petition to be “second or successive, ” the
first petition must have been decided on the merits. See
Murray v. Greiner, 394 F.3d 78, 80-81 (2d Cir. 2005).
requirement is jurisdictional. See Cianfarano v. U.S.
Gov’t, 585 F.Supp.2d 360, 371 (E.D.N.Y. 2008);
cf. Burton v. Stewart, 549 U.S. 147, 149, 152, 157
(2007) (per curiam) (ruling in section 2254 case); Torres
v. Senkowski, 316 F.3d 147, 151 (2d Cir. 2003) (same).
Mr. Powell’s filing, however, fails to include
certification from the Court of Appeals authorizing him to
file a second or successive petition in the district court.
Since Mr. Powell’s first federal petition had been
decided on the merits, this Court lacks jurisdiction to
entertain a second or successive section 2255 petition filed
Mr. Powell has framed this present petition as one made under
section 2241 rather than section 2255, “[i]t is
well-settled that a district court may convert a § 2241
petition to a § 2255 motion in appropriate
circumstances.” Ching v. United States, 298
F.3d 174, 176 (2d Cir. 2002). As discussed below, the Court
construes the present petition as a section 2255 motion.
petition filed under 28 U.S.C. § 2241 may be used to
challenge the execution of a federal sentence. See
Chambers v. United States, 106 F.3d 472, 474 (2d Cir.
1997). Proper challenges under section 2241 include claims
that the Bureau of Prisons has improperly calculated sentence
credit for other periods of detention, that parole was
improperly denied, or that conditions of confinement are
unconstitutional. See Poindexter v. Nash, 333 F.3d
372, 377 (2d Cir. 2003). On the other hand, a motion filed
under 28 U.S.C. § 2255 is the proper vehicle for a
federal prisoner “claiming the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States[.]” 28
U.S.C. § 2255(a). See id., 333 F.3d at 377-78
(noting general rule that federal prisoner must use section
2255 rather than section 2241 to challenge constitutionality
of the imposition of conviction or sentence).
section 2241, a habeas petitioner can seek relief to
challenge the imposition of his sentence only if the remedy
provided by section 2255 is “inadequate or
ineffective” to test the legality of his detention and
the “failure to allow for collateral review would raise
serious constitutional questions.” Middleton v.
Schult, 299 F. App’x 94, 95 (2d Cir. 2008)
(quoting Triestman v. United States, 124 F.3d 361,
377 (2d Cir. 1997)) (internal quotation marks omitted). A
section 2255 motion is not “inadequate or
ineffective” merely because the petitioner does not
meet the stringent gate-keeping requirements of section 2255.
See Jiminian v. Nash, 245 F.3d 144, 147-48 (2d Cir.
2001); Bryce v. Scism, No. 3:09-cv-2024, 2010 U.S.
Dist. LEXIS 131927, *6, 2010 WL 5158559, *3 (D. Conn. Dec.
13, 2010). Rather, the exception provided under section 2255
is extremely narrow and has been held to apply only in
unusual situations. See Bryce, 2010 U.S. Dist. LEXIS
131927, *6-8, 2010 WL 5158559, *3 (“The Second Circuit
has recognized the exception in only one circumstance: cases
involving prisoners who (1) can prove actual innocence on the
existing record, and (2) could not have effectively raised
their claims of innocence at an earlier time.”). Mr.
Powell has not demonstrated that section 2255 is inadequate
or ineffective to obtain the relief he seeks.
the present petition is properly construed as a second or
successive petition under section 2255, the Court is without
jurisdiction to rule on it and must transfer it to the Second
Circuit for its consideration. See Cianfarano, 585
F.Supp.2d at 371; cf. Jiminian, 245 F.3d at 148.
the Clerk is directed to transfer this case to the Court of
Appeals for the Second Circuit for consideration whether the
claims raised in ...