Smith v. Warden

          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 (11^th 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 (6^th 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 ...