United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
Alvin
W. Thompson, United States District Judge
Petitioner
Tony Smith commenced this habeas corpus action pro
se pursuant to 28 U.S.C. § 2241, challenging his
designation as a career offender. The respondent contends
that the petitioner fails to satisfy the requirements to
proceed on this claim under section 2241. The court agrees.
Accordingly, for the reasons that follow, the petition is
dismissed.
I.
Legal Standard
A
motion filed pursuant to 28 U.S.C. § 2255 is the proper
vehicle for a federal prisoner “claiming the right to
be released upon the ground ... that the court was without
jurisdiction to impose [the] sentence.” 28 U.S.C.
§ 2255(a). See Poindexter v. Nash, 333 F.3d
372, 377-78 (2d Cir. 2003) (noting general rule that federal
prisoner must use section 2255 rather than section 2241 to
challenge constitutionality of conviction or sentence). A
habeas petitioner can seek relief under section 2241 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 Fed.Appx. 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 gate-keeping requirements of section 2255. See
Bryce v. Scism, No. 3:09CV2024(WWE), 2010 WL 5158559, at
*3 (D. Conn. Dec. 13, 2010) (motion pursuant to section 2255
is not inadequate or ineffective because prisoner is
procedurally barred from filing section 2255 motion). Rather,
the exception provided under section 2255 is extremely narrow
and has been held to apply only in unusual situations. The
Second Circuit has recognized an exception only where a
prisoner can prove actual innocence on the existing record
and could not have raised his claim of innocence at an
earlier time. See id. (citing Triestman,
124 F.3d at 363). The petitioner must prove
“‘factual innocence, not mere legal
insufficiency.'” Johnson v. Bellnier, 508
Fed.Appx. 23, 26 (2d Cir. 2013) (quoting Bousley v.
United States, 523 U.S. 614, 623 (1998)). To do so, the
petitioner must support his actual innocence claim
“with new reliable evidence- whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence--that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 324
(1995). Because evidence of the required type is rarely
available, claims of actual innocence are rarely successful.
See id.
II.
Background
The
petitioner was indicted by a federal grand jury in the
Southern District of Georgia. On August 6, 2007, the
petitioner pled guilty to one count of the indictment, in
which the charge was possession of more than fifty grams of
cocaine base with intent to distribute. On February 1, 2008,
the petitioner was sentenced to a term of imprisonment of 326
months. Because the petitioner had five prior convictions, he
was sentenced as a career offender. The Eleventh Circuit
affirmed his conviction. United States v. Smith, 291
Fed.Appx. 1002 (11th Cir. 2008).
The
petitioner filed a section 2255 motion in September 2009 on
the ground that his counsel was ineffective for failing to
object to the court's reliance on certain predicate
offenses in determining the sentence. The motion was
dismissed in November 2009. Smith v. United States,
Nos. CV609-066, CR606- 010, 2009 WL 3961883 (S.D. Ga. Nov.
16, 2009).
In
March 2012, after getting one of the predicate state
convictions that was used to enhance his sentence vacated,
the petitioner sought permission from the Eleventh Circuit to
file a second section 2255 motion. The Eleventh Circuit
determined that the petition was not successive and permitted
him to file it. The petition was denied as untimely filed and
on the merits. Smith v. United States, Nos.
CV612-036, CR606-010, 2012 WL 4468526 (S.D. Ga. Sept. 26,
2012), report and recommendation adopted, 2012 WL
4849010 (Oct. 11, 2012).
III.
Discussion
The
petitioner is challenging his sentence enhancement as a
career criminal. Thus, his proper recourse is a motion filed
pursuant to section 2255. The petitioner has filed two
motions pursuant to section 2255 in the United States
District Court for the Southern District of Georgia. The fact
that he may not be able to file a third section 2255 motion
does not render section 2255 inadequate to protect his
rights. See Jiminian v. Nash, 254 F.3d 144, 147 (2d
Cir. 2001) (section 2255 “is not inadequate or
ineffective, such that a federal prisoner may file a §
2241(c)(3) petition, simply because a prisoner cannot meet
the AEDPA's gate-keeping requirements”);
Bryce, 2010 WL 5158559, at *3 (same).
The
petitioner argues that he can bring this action under section
2241 because his prior convictions no longer qualify him for
a career offender enhancement. ECF No. 1 at 7, ¶ 13. The
petitioner relies on cases from other circuits that permit a
challenge to a sentence enhancement in a section 2241
petition. See, e.g., Hill v. Masters, 836
F.3d 591, 595-96 (6th Cir. 2016) (allowing second
or successive petition challenging sentencing enhancement
where petitioner was sentenced while sentencing guidelines
were mandatory). This argument is unavailing for two reasons.
First,
law from other circuits is not binding on courts in the
Second Circuit. See, e.g., Newsweek, Inc. v.
U.S. Postal Service, 663 F.2d 1186, 1196 (2d Cir. 1981)
(“It is well settled that the decisions of one Circuit
Court of Appeals are not binding upon another Circuit).
Second, the petitioner in Hill was permitted to use
section 2241 to challenge his sentence enhancement because he
was sentenced during the time when the guidelines were
mandatory. See 836 F.3d at 599-600. The Supreme
Court held that the guidelines were advisory and not
mandatory in 2005. See United States v. Booker, 543
U.S. 220 (2005). As the petitioner was sentenced in 2008,
Hill, even if applicable, would afford him no
relief.
Both
the Supreme Court and the Second Circuit construe the
“actual innocence” doctrine narrowly. See
Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992)
(explaining that the actual innocence doctrine is
“narrow” and typically “concerned with
actual as compared to legal innocence”) (citation
omitted); Darby v. United States, 508 Fed.Appx. 69,
71 (2d Cir. 2013) (calling the doctrine “very
narrow”). In noncapital cases, as here, actual
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