GOLDING v. WARDEN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FRANZ GOLDING,

Civil Action

Petitioner, No. 20-6571 (CPO)

v.

OPINION

WARDEN, FCI Fort Dix,

Respondent.

O’HEARN, District Judge.

Petitioner is a federal prisoner, and he is proceeding pro se with a Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2241. Respondent filed an Answer opposing relief, (ECF

No. 13), and Petitioner did not file a reply. For the reasons set forth below, the Court will invoke

the concurrent sentence doctrine and dismiss the Petition.

I. BACKGROUND

This matter arises from Petitioner’s criminal case in the United States District Court for the

Southern District of New York. That court set forth the underlying facts as follows:

From late 2003 until early 2005, Shawn Peterkin (“Peterkin”) ran a

marijuana business in the Bronx. He was assisted in this enterprise

by numerous individuals, including Golding, Keino Simpson

(“Simpson”), Omar Ken (“Ken”), Damian Brown (“Brown”), and

Dwayne Palmer (“Palmer”).

In 2005, Peterkin and Simpson had a disagreement concerning a

quantity of marijuana for which Peterkin had not been paid. As a

consequence, in early April of that year, Simpson and Ken forced

Peterkin into his home at gunpoint, attacked him and his family, and

stole a large quantity of marijuana and nearly $50,000 in cash. This,

in turn, led to internecine warfare, including several shootouts

involving Peterkin, Golding, Brown, and Palmer on one side, and

Simpson and Ken on the other.

During the early morning of April 16, 2005, Peterkin, Brown,

Golding, and Palmer were in Peterkin’s silver Nissan Maxima when

they began shooting at three vehicles driven by Simpson, Ken, and

a man named David Reeves (“Reeves”). Peterkin, Brown, and

Palmer were using handguns; Golding was using an AK–47

automatic rifle. During a subsequent chase, the occupants of the

Maxima riddled Simpson’s car with bullets, and he eventually

crashed into a parked car. Simpson died at a nearby hospital a little

while later.

Immediately after the shooting, Peterkin, Brown, Palmer, and

Golding fled across the George Washington Bridge to a motel

(“Motel”) in Fort Lee, New Jersey. Early the next morning, law

enforcement officers arrested Peterkin, Golding, and Palmer, each

in a different room at the Motel, and seized several firearms,

including a loaded .40–caliber Fratelli Tanfolio semi-automatic

handgun found in Golding’s room. At the time of his arrest, Golding

had in his possession a ledger reflecting various drug transactions.

The officers executing the arrests also found shell casings in

Peterkin’s Nissan that had been fired from an AK–47–type gun.

The only eyewitness testimony concerning the Simpson murder

came from Ken. He described the dispute between Peterkin and

Simpson concerning marijuana, admitted to robbing Peterkin’s

home and assaulting Peterkin and his family, and described the

violent confrontations that followed that incident.

In particular, Ken testified that on April 16, 2005, he, Simpson, and

Reeves were in three separate cars parked near 219th Street and

White Plains Road in the Bronx, when Peterkin, Brown, Palmer, and

Golding arrived in Peterkin’s Nissan and began shooting at them.

Golding was using an AK–47. After the targets of the attack drove

off in their respective vehicles, a high speed chase ensued during

which Peterkin, Brown, Palmer, and Golding continued to fire. At

one point, after Ken stopped at a gas station, Reeves called Ken’s

cell phone. In response to Reeves’ question, Ken indicated that

Peterkin, Brown, and Golding were the shooters; Reeves responded

that they had killed Simpson.

A Government ballistics expert testified that ten bullets and shell

casings fired from an AK–47 were found at the crime scene, some

of which matched those found in Peterkin’s vehicle, and that one of

the bullets recovered from Simpson’s body had been fired from an

AK–47–type rifle. Another Government witness, Detective John

Murray of the New York City Police Department (“NYPD”)

(“Det.Murray”), testified that Golding made a statement at the Motel

after waiving his Miranda rights. In brief, Golding admitted his role

in the shooting and the violent episodes that preceded it. Golding

also admitted that he and the others involved in the April 16 incident

had used numerous firearms, including .40–caliber handguns, 9–

millimeter handguns, and an AK–47 assault rifle. Aaron Royes

(“Royes”), one of Golding’s fellow inmates, also testified that

Golding admitted to him that “he killed a guy for robbing his friend”

and that he had an AK–47 at the time of the murder.

George M. Goltzer, Esq., (“Mr.Goltzer”) represented Golding in the

District Court and on appeal. Because the charges against Golding

included the crime of murder, Judge Jones (to whom the case then

was assigned) also appointed Frederick Cohn, Esq., to serve as

“learned counsel.” (See Cr. ECF No. 80). Although both defense

counsel represented Golding through much of the proceedings,

Golding’s claims focus exclusively on Mr. Goltzer’s representation.

(See Pet.’s Mem.). The defense strategy pursued by both attorneys

was to argue that Simpson’s murder was in no way related to a drug

conspiracy. Defense counsel thus argued that Simpson was not

killed in retaliation for a robbery that undermined Peterkin’s

marijuana business, but as an act of personal revenge. Counsel

claimed that Simpson was killed because he and Ken had attacked

Peterkin’s family, duct-taped Peterkin’s two-year old daughter to

the bed, and sexually assaulted Peterkin’s wife Rachel on the night

of the robbery.

Golding v. United States, No. 05-538, 2014 WL 2959296, at *1–2 (S.D.N.Y. July 2, 2014), report

and recommendation adopted, 2014 WL 4977481 (Sept. 29, 2014).

After a two-week trial, a jury convicted Petitioner of “conspiring to distribute and possess

with intent to distribute 100 kilograms or more of marijuana (Count One); using firearms to

commit a murder in furtherance of that conspiracy (Count Two); carrying firearms during that

conspiracy (Count Three); and being an alien in possession of a firearm (Count [Five]).” Id. at *1.

Ultimately, in September of 2008, the Southern District of New York sentenced Petitioner

to 420 months in prison, on each of Counts One, Two, and Five, to run concurrently. (U.S. v.

Golding, Crim. No. 05-538, ECF No. 113, at 2.) The court did not impose a sentence on Count

Three. (Id.)

Petitioner appealed, and the Second Circuit affirmed. United States v. Brown, 374 F. App’x

208, 211 (2d Cir. 2010) (addressing the appeal of Petitioner and his codefendants). Thereafter,

Petitioner filed a motion to vacate, correct, or set aside sentence under 28 U.S.C. § 2255, and his

sentencing court denied that motion and did not issue a certificate of appealability. Golding v.

United States, No. 05-538, 2014 WL 4977481, at *1 (S.D.N.Y. Sept. 29, 2014). It appears that

Petitioner did not request a certificate of appealability from the Second Circuit.

Petitioner filed the instant § 2241 Petition in May of 2020. In his Petition, Petitioner argues

that one of his three convictions and one of his three sentences, are no longer valid in light of

Rehaif v. United States, 139 S. Ct. 2191 (2019). Respondent filed an Answer opposing relief,

(ECF No. 13), and Petitioner did not file a reply.

II. STANDARD OF REVIEW

Courts hold pro se pleadings to less stringent standards than more formal pleadings drafted

by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Courts must construe pro se habeas

petitions and any supporting submissions liberally and with a measure of tolerance. See Royce v.

Hahn, 151 F.3d 116, 118 (3d Cir. 1998).

A court addressing a petition for writ of habeas corpus “shall forthwith award the writ or

issue an order directing the respondent to show cause why the writ should not be granted, unless

it appears from the application that the applicant or person detained is not entitled thereto.” 28

U.S.C. § 2243. A district court may “dismiss a petition summarily when it plainly appears from

the face of the petition and any exhibits . . . that the petitioner is not entitled to relief.” Lonchar v.

Thomas, 517 U.S. 314, 320 (1996).

If a court does not dismiss the petition at the screening stage, the court “must review the

answer, any transcripts and records . . . to determine whether” the matter warrants an evidentiary

hearing. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts

(made applicable to proceedings under § 2241 by Rule 1(b)). “Whether to order a hearing is within

the sound discretion of the trial court,” and depends on whether the hearing “would have the

potential to advance the petitioner’s claim.” Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.

2000); States v. Friedland, 879 F. Supp. 420, 434 (D.N.J. 1995) (applying the § 2255 hearing

standard to a § 2241 petition), aff’d, 83 F.3d 1531 (3d Cir. 1996).

III. DISCUSSION

Petitioner contends that his conviction and sentence under 18 U.S.C. § 922(g)(5)(A) are no

longer valid in light of Rehaif v. United States, 139 S. Ct. 2191 (2019). “In Rehaif, the Supreme

Court held that ‘the Government must prove both that the defendant knew he possessed a firearm

and that he knew he belonged to the relevant category of persons barred from possessing a firearm’

to obtain a conviction under § 922(g).” Farrell v. Warden FCI Fairton, No. 20-4414, 2021 WL

222684, at *2 (D.N.J. Jan. 22, 2021) (quoting Rehaif, 139 S. Ct. at 2200). In response, Respondent

contends, among other things, that the Court should dismiss this matter pursuant to the concurrent

sentence doctrine.

Under the concurrent sentence doctrine, “a federal court may decline to review an alleged

error where concurrent sentences were imposed on separate counts, where the alleged error is

associated with only one count, and where the remaining sentences are unassailable.” Nosov v.

Schuylkill, 634 F. App’x 379, 380 (3d Cir. 2016); see also Logan v. Dist. Att’y Allegheny Cty., 752

F. App’x 119, 122 (3d Cir. 2018); Gardner v. Warden Lewisburg USP, 845 F.3d 99, 104 (3d Cir.

2017); Edelman v. Bradley, No. 20-01040, 2020 WL 4819870, at *3 (M.D. Pa. Aug. 19, 2020)

(declining to consider a Rehaif claim in a § 2241 petition under the concurrent sentence doctrine).

As the Third Circuit reasoned, because a petitioner “remains sentenced in any event,

reviewing the concurrently sentenced counts is of no utility. The practice is eminently practical

and conserves judicial resources for more pressing needs.” See Jones v. Zimmerman, 805 F.2d

1125, 1128 (3d Cir. 1986). Courts should apply the doctrine “only when it is apparent that the

[petitioner] will not suffer collateral consequences from the unreviewed conviction.” See Nosov,

634 F. App’x at 380.

In the direct appeal context, collateral consequences can include “a potential delay in the

defendant’s eligibility for parole, an increased sentence under a recidivist statute for a future

offense, the use of the additional conviction to impeach the defendant’s credibility, and the societal

stigma accompanying any criminal conviction.” United States v. Ross, 801 F.3d 374, 382 (3d Cir.

2015) (citing Ball v. United States, 470 U.S. 856, 865 (1985)).

In the habeas context, however, “the collateral consequences of a conviction for . . . a

concurrent sentence . . . must rise to the level of ‘custody’ to be redressable.” Logan, 752 F. App’x

at 122 (citing Gardner, 845 F.3d at 104; Ross, 801 F.3d at 383). The Third Circuit explained that

the “term ‘custody’ in federal habeas statutes is ‘designed to preserve the writ of habeas corpus as

a remedy for severe restraints on individual liberty.’” Id. at 122 n.5 (quoting Hensley v. Municipal

Court, 411 U.S. 345, 351 (1973)). As a result, “the collateral consequences that attach to the

conviction at issue must pose a severe and immediate restraint on the petitioner that is not shared

by the public generally.” Id.

In the present case, in addition to Petitioner’s 420-month sentence for his alien in

possession of a firearm conviction, 18 U.S.C. § 922(g)(5)(A), Petitioner is serving two additional

420-month sentences for his convictions for conspiracy to distribute and possess with intent to

distribute 100 kilograms or more of marijuana, 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B), and for

use of a firearm to commit murder in furtherance of that conspiracy, 18 U.S.C. § 924(j)(1). (U.S.

v. Golding, Crim. No. 05-538, ECF Nos. 40, 113.)

As the Second Circuit and the Southern District of New York determined through

Petitioner’s direct appeal and § 2255 proceedings, Petitioner’s two other 420-month sentences

remain valid. Accordingly, even if Petitioner is successful in this Petition, it would only abrogate

one of his three 420-month sentences, and “any potential relief would not reduce the time he is

required to serve.” Logan, 752 F. App’x at 122; Edelman, 2020 WL 4819870, at *3.

As to collateral consequences, Petitioner had the opportunity, but did not file a reply in this

case. Consequently, “Petitioner has not demonstrated that he would suffer any collateral

consequences arising from his challenged conviction, let alone any collateral consequences that

rise to the level of ‘custody’ for purposes of § 2241.” Edelman, 2020 WL 4819870, at *3 (citing

Gardner, 845 F.3d at 104 (“Although the range of adverse collateral consequences is quite broad

. . . Gardner cannot show that any rise to the level of ‘custody’ in this case given his other life

sentences.”)).

Indeed, “it is hard to see any significant collateral consequence originating from his

conviction under” § 922(g)(5)(A), that are separate from his convictions for conspiracy to

distribute over 100kg of marijuana and for use of a firearm to commit murder in furtherance of

that conspiracy.1 Ross, 801 F.3d at 383 (“Though pressed at oral argument, Ross could not point

1 In the habeas context, Courts have rejected a long list of alleged collateral consequences, finding

that they do not rise to the level of “custody.” Logan, 752 F. App’x at 122 n.6 (“The bare possibility

that the relevant Pennsylvania court might remand for resentencing, and that the trial court might

then impose a lower sentence, is so remote as to be ‘nothing more than speculation’ and therefore

does not rise to the level of ‘custody.’”); Gardner, 845 F.3d at 104 (finding that special monetary

assessments do not rise to the level of “custody”); Ross, 801 F.3d at 383 (finding that greater social

stigma, weaker credibility at future hearings or trials, the potential bar to obtaining the benefit of

future changes to the law, the effect on his eligibility for parole, or the potential effect on the length

of a future sentence if he is convicted of a future crime, do not rise to the level of “custody”).

to a collateral consequence not already existing as a result of his prior felony convictions or his

seven other felony convictions in this case.”) Accordingly, under these circumstances, the Court

finds that it is appropriate to utilize the concurrent sentence doctrine and dismiss the Petition.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss the Petition. An appropriate Order

follows.

DATED: March 28, 2022

/s/ Christine P. O’Hearn____

Christine P. O’Hearn

United States District Judge