The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN DENARES GORDON, *
*
Petitioner, *
*
v. * Civil Action No. 1:17-cv-12398-IT
*
STEPHEN SPAULDING, Warden, *
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Respondent. *
MEMORANDUM AND ORDER
March 28, 2019
TALWANI, D.J.
I. Introduction
Petitioner John Denares Gordon, who is currently incarcerated at Federal Medical Center
(“FMC”) Devens in Ayer, Massachusetts, filed this Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2241 [#1] challenging a life sentence imposed in the Eastern District of Michigan.
Presently at issue is Respondent’s Amended Motion to Dismiss (“Resp. Am. Mot. Dismiss”)
[#14]. For the reasons set forth below, Respondent’s motion is ALLOWED and the Petition is
DISMISSED without prejudice.
II. Background
In 1995, Petitioner and 18 other codefendants were indicted in the Eastern District of
Michigan. Second Superseding Indictment, United States v. Brown et al., No. 2:92-cr-81127-
AC-33 (E.D. Mich. Feb. 21, 1995), Dkt. 882; see Petitioner’s Memo in Support of § 2241
Petition (“Pet. Mem.”), Ex. A (“Relevant Pages of Superseding Indictment”) [#2-1]. A jury
convicted Petitioner of: conspiracy to possess cocaine with intent to distribute and to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846; aiding and abetting an intentional
killing, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2; and using or carrying a
firearm in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Brown, No.
2:92-cr-81127-AC-33 at Dkt. 1243. Petitioner was sentenced to life in prison, plus five years. Id.
at Dkt. 1343; see also Resp. Am. Mot. Dismiss, Ex. 2 (“Sixth Circuit Order”) [#14-2]. On direct
appeal, the Court of Appeals for the Sixth Circuit affirmed his conviction and sentence. United
States v. Polk, 182 F.3d 919 (6th Cir. 1999); see Resp. Am. Mot. Dismiss 2 [#14].
Gordon has since filed multiple post-conviction motions under 28 U.S.C. § 2255 in the
Eastern District of Michigan. See Corrected Petition, 3, In re John Gordon, No. 17-1118 (6th Cir.
2017), Dkt. 1 (listing prior proceedings); see Resp. Am. Mot. Dismiss, Ex. 1 (“Docket from
Sixth Circuit Court of Appeals”) [#14-1]. On September 5, 2017, Petitioner’s most recent motion
for authorization to file a second or successive section 2255 petition was denied by the Sixth
Circuit. In re John Gordon, No. 17-1118 (6th Cir. 2017), Dkt. 8; see Docket from Sixth Circuit
Court of Appeals [#14-1].
Petitioner subsequently filed the instant Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2241. His Petition makes several arguments attacking the invalidity of his sentence.
First, Petitioner argues that the “imposition of his life sentence is unlawful and contravenes with”
the Supreme Court’s ruling in Miller v. Alabama, 567 U.S. 460 (2012), made retroactive by
Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Pet. Mem. 19 [#2]. Petitioner’s second
argument is that recent developments in case law, such as Apprendi v. New Jersey, 530 U.S. 466
(2000) and United States v. Booker, 543 U.S. 220 (2005), permit him to challenge the sentence
he received for his conviction under 21 U.S.C. § 841(b)(1). See Pet. Mem. 10-11 [#2]. Third,
Petitioner argues that the increase in the calculation of his guideline sentencing range based on
his career criminal enhancement resulted in a higher range, and higher sentence, than he might
otherwise have received. Pet. Mem. 12. [#2]. He argues that the Supreme Court’s ruling in
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016), affords him the possibility of arguing
that the court misapplied the guideline range and that “there is a reasonable probability that the
district court may have imposed a lower sentence.” Pet. Mem. 15 [#2]. Finally, Petitioner argues
that his conviction violates the Fifth and Eight Amendments because the conspiracy was not
charged, and, even if it were charged, it occurred when Petitioner was 15 years old, and
therefore, it cannot support a life sentence under Miller. Pet. Mem. 22 [#2].
While the present case was pending, the Sixth Circuit sua sponte reconsidered
Petitioner’s 28 U.S.C. § 2255(h) motion. See Order on Second or Successive Petition, In re John
Gordon, No. 17-1118 (6th Cir. Sep. 5, 2017), Dkt. 10; see also Sixth Circuit Order [#14-2]. The
Sixth Circuit noted that Petitioner had argued in his motion that he was entitled to relief pursuant
to Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016),
because he had been sentenced to mandatory life without parole based on crimes he had
committed as a juvenile. Id. One of Petitioner’s co-defendants had made the exact same
argument, and had been granted leave to proceed. Id. In light of the conflicting orders, on
reconsideration, the Sixth Circuit granted Petitioner leave to proceed under section 2255(h). Id.
Petitioner has now filed such a habeas petition in the Eastern District of Michigan. See United
States v. Brown, et al., 2:92-cr-81127-AC-33 (E.D. Mich. Nov. 6, 2018), Dkt. 2337.
On May 1, 2018, Respondent filed an Amended Motion to Dismiss [#14] in this action,
which Petitioner has opposed.
Briefing in connection with Petitioner’s section 2255 petition in the Eastern District of
Michigan is ongoing. See Order Regarding Briefing Schedule, U.S. v. Brown, et al., 2:92-cr-
81127-AC-33 (E.D. Mich. Jan 14, 2019) (Cohn, J.), Dkt. 2350.
III. Analysis
Respondent argues that this court does not have jurisdiction to consider Petitioner’s
petition because the Sixth Circuit Court of Appeals has already allowed him to file a further
petition in the sentencing court, and because Petitioner’s filing attempts to circumvent “the strict
limitations placed on the filing of successive petitions under 28 U.S.C. § 2255.” Resp. Am. Mot.
Dismiss 3 [#14]. In the alternative, Respondent alleges that Petitioner’s filing is untimely
because it seeks relief under cases decided over a year ago. Id. at 7.1
A petitioner may collaterally challenge the length of his sentence under 28 U.S.C. § 2255.
Section 2255 “provides for post-conviction relief in four instances, namely, if the petitioner’s
sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that
lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to
collateral attack.” David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); 18 U.S.C. § 2255(a)
(listing grounds). Recourse to proceedings under section 2255 is limited by constraints imposed
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which among other
things, requires a federal prisoner who seeks to prosecute a second or successive section 2255
petition to obtain pre-clearance from the court of appeals. 28 U.S.C. § 2255(h).
Petitioner brought his petition under 28 U.S.C. § 2241, rather than section 2255. But “[a]
close analysis of the substance of the petition in this case leaves no doubt but that, regardless of
1 Respondent also disputes the merits of Petitioner’s claims. Specifically, Respondent asserts that
Petitioner was not a juvenile offender because Petitioner’s involvement in the conspiracy for
which he was sentenced began after Petitioner turned 18 years old. See Resp. Am. Mot. Dismiss
9 [#14]. Respondent also disputes the accuracy of the Petitioner’s arguments regarding the
timing of the retroactivity of Miller, asserting that it is retroactive from the “date when an
asserted right is initially recognized by the Court, not when the Court makes the right
retroactively applicable.” Id. at 8.Because the court resolves this Motion on jurisdictional
grounds, the court does not address the merits of Petitioner’s claims or Respondent’s responses.
its label, the petition falls within the compass” of section 2255. Trenkler v. United States, 536
F.3d 85, 97 (1st Cir. 2008). Despite Petitioner’s assertions to the contrary, his claims all seek to
attack the length of his sentence. He does not seek to attack the conditions of his confinement or
“such matters as the administration of parole, computation of a prisoner's sentence by prison
officials, prison disciplinary actions, prison transfers, types of detention and prison conditions.”
Gonzalez v. United States, 150 F. Supp. 2d 236, 241 (D. Mass. 2001) (internal citations and
quotation marks omitted).
A challenge under section 2255 must be made to the sentencing court. Trenkler, 536 F.3d
85, 97–98 (1st Cir. 2008); 28 U.S.C. § 2255(a) (a prisoner “may move the court which imposed
the sentence [ . . . ]”). Because Petitioner was convicted in the Eastern District of Michigan, this
court does not have jurisdiction under section 2255 to hear the petition or to revise the sentence
imposed.
Petitioner argues that he can bring his challenge to his sentence under the “savings
clause” in 28 U.S.C. § 2255(e). Section 2255(e) provides that a petition by a prisoner who may
apply for relief under section 2255 but has failed to do so or who has been denied relief may not
be entertained unless it appears that the remedy under section 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C. § 2255(e). Courts have allowed recourse to this
savings clause in “rare and exceptional circumstance[s], such as those in which strict adherence
to AEDPA's gatekeeping provisions would result in a complete miscarriage of justice.” Trenkler,
536 F.3d at 99 (internal citation omitted). Given that his petition is now being considered by the
sentencing court, Petitioner cannot demonstrate that section 2255 is “inadequate or ineffective.”
Petitioner argues that, although the Sixth Circuit agreed that his Eighth Amendment
claim must be addressed, there is “no order instructing the sentencing court to consider the other
claims” set forth in his section 2241 petition. Petitioner’s Reply to Resp. Am. Mot. Dismiss 2
[#17]. But Petitioner points to no authority allowing him to challenge his sentence under section
2241 when he has a pending petition under section 2255. Accordingly, this court does not have
jurisdiction to hear Petitioner’s claim, and this case is dismissed.
IV. Conclusion
For the foregoing reasons, the Respondent’s Amended Motion to Dismiss [#14] is
ALLOWED. Petitioner’s Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 [#1] is
DISMISSED without prejudice.
IT IS SO ORDERED.
Date: March 28, 2019 /s/ Indira Talwani
United States District Judge