Holloman v. Perdue

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DERRICK L. HOLLOMAN, :

Petitioner :

CIVIL ACTION NO. 3:18-0130

v. :

(Judge Mannion)

WARDEN R.A. PERDUE, :

Respondent :

MEMORANDUM

Petitioner, Derrick L. Holloman, an inmate confined in the Schuylkill

Federal Correctional Institution, Minersville, Pennsylvania, filed this petition

for writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc. 1). He

challenges a conviction and sentence imposed by the United States District

Court for the Middle District of North Carolina. Id. Specifically, he requests “to

be re-sentenced as a career offender or to have [his] prison term vacated on

the grounds that a consolidated charge was separated and used to sentence

[him] as an armed career criminal and according to North Carolina law the

federal court is in complete violation for separating these charges.” Id. He

believes that “even though [his] now conviction is valid, [his] sentence

however is not.” Id. For the reasons set forth below, the Court will dismiss the

petition for writ of habeas corpus for lack of jurisdiction.

Background

On January 30, 2009, Holloman was indicted in the United States

District Court for the Middle District of North Carolina on various violence and

firearms charges. United States v. Holloman, No. 1:09-CR-0050-01 (M.D.

N.C.). On May 6, 2009, the district court accepted Holloman’s plea of guilty

to one count of interference with commerce by violence in violation of 18

§1951(a) and one count of felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1), 924(e). Id. As part of the plea agreement, Holloman was

informed of the sentencing range for the charges against him. Id. Holloman

acknowledged that he would be sentenced pursuant to the United States

Sentencing Guidelines, and that the guidelines were advisory. Id.

On December 23, 2009, Holloman was sentenced to 228 months as to

Count 1 and 228 months as to Count 3 to run concurrently with the sentence

imposed as to Count 1. Id.

On December 30, 2009, Holloman filed an appeal to the United States

Court of Appeals for the Fourth Circuit. ld. On October 15, 2010, the Fourth

Circuit Court of Appeals affirmed the District Court. Id.

On December 9, 2015, Holloman filed a motion to vacate his conviction

and sentence pursuant to 28 U.S.C. §2255. Id. As alleged in the instant

petition, Holloman claimed that his sentence was improperly increased due

to the residual clause of the Armed Career Criminal Act (“ACCA”) in violation

of the Supreme Court’s holding in Johnson v. United States, 135 S. Ct. 2551

(2015). United States v. Holloman, No. 1:09-CR-0050-01 (M.D. N.C.).

In opposing Holloman’s § 2255 motion, the Government explained that

Holloman had three prior convictions for a “violent felony” that were not

subject to the “residual clause” in §924(e) so that his sentence was not

affected by Johnson. Id., Additionally, the Government argued that the factual

basis in support of Holloman’s guilty plea clearly stated he committed a

robbery while using a sawed off shotgun so that the four level sentence

enhancement was warranted. Id. By Order dated January 27, 2017, the

sentencing court denied the §2255 motion, reasoning that Holloway’s

previous convictions did, in fact, render him an Armed Career Criminal. Id.

On January 18, 2018, Holloman filed the instant petition for writ of

habeas corpus pursuant to 28 U.S.C. §2241, in which he requests “to be

resentenced as a career offender or to have [his] prison term vacated on the

grounds that a consolidated charge was separated and used to sentence

[him] as an armed career offender and according to North Carolina law the

federal court is in complete violation for separating these charges.” Id. Thus,

he concludes that “so even though [his] now conviction is valid...[his]

sentence however is not.” Id. (See Doc. 1, petition).

ll. DISCUSSION

The ACCA imposes a 15-year mandatory minimum sentence on a

person convicted of being a felon in possession of a firearm if that person has

three previous convictions for violent felonies or serious drug offenses. 18

U.S.C. §924(e)(1). In what is known as the “residual clause,” the ACCA

defines the term “violent felony” to “include any felony that ‘involves conduct

that presents a serious potential risk of physical injury to another.’ ” Johnson

v. United States, 135 S.Ct. 2551, 2555-56 (2015) (quoting 18 U.S.C.

§924(e)(2)(B)). In Johnson, the Supreme Court of the United States held that

the residual clause of the ACCA is unconstitutionally vague, and that imposing

an increased sentence under that clause violates due process. Id. at 2563.

Here, Holloman appears to contend that because his prior convictions was

classified as violent felonies under the residual clause of the ACCA, his

underlying criminal sentence is unconstitutional and must, therefore, be

vacated, set aside, and corrected. A federal prisoner like Holloman, however,

is generally required to use 28 U.S.C. §2255 to collaterally attack his

conviction or sentence on constitutional grounds. Okereke v. United States,

307 F.3d 117, 120 (3d Cir. 2002). He “can seek relief under §2241 only if the

remedy provided by §2255 is inadequate or ineffective to test the legality of

his detention.” Manna v. Schultz, 454 Fed.Appx. 31, 33 (8d Cir. 2010).

A motion under §2255 is inadequate or ineffective only if “some

limitation of scope or procedure would prevent a [§]2255 proceeding from

affording the prisoner a full hearing and adjudication of his claim of wrongful

detention.”Application of Galante, 437 F.2d 1164, 1165—66 (3d Cir. 1971).

“Section 2255 is not inadequate or ineffective merely because the sentencing

court does not grant relief, the one-year statute of limitations has expired, or

the petitioner is unable to meet the stringent gatekeeping requirements of the

amended §2255.” Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002).

“It is the inefficacy of the remedy, not the personal inability to utilize it, that is

determinative.” Id. at 538.

The petitioner has the burden of proving that the remedy afforded by

§2255 is inadequate or ineffective. Brown v. Mendez, 167 F. Supp. 2d 723,

726 (M.D. Pa. 2001). And, when a petitioner improperly challenges a

conviction or sentence under §2241, the petition must be dismissed for lack

of jurisdiction. Gardner v. Warden Lewisburg USP, 845 F.3d 99, 104 (3d Cir.

2017) (affirming the District Court’s order denying Gardner’s §2241 habeas

petition for lack of jurisdiction).

In In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the United States Court

of Appeals for the Third Circuit addressed the question of when a prisoner

may bring a §2241 habeas petition after being denied leave to file a second

or successive §2255 motion. The Third Circuit held that a federal prisoner

barred from filing a second or successive §2255 motion can resort to a §2241

habeas petition if the prisoner “had no earlier opportunity to challenge his

conviction for a crime that an intervening change in substantive law” negated.

Id. at 251. “[T]ne “safety valve” provided under §2255” and as outlined in

Dorsainvil “is extremely narrow and has been held to apply only in unusual

situations, such as those in which a prisoner has had no prior opportunity to

challenge his conviction for a crime later deemed to be non-criminal by an

intervening change in law.” Brown v. United States, 413 Fed.Appx. 514, 516

(3d Cir. 2011); Bruce v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir.

2017) (stating that it permits access to §2241 “when there is a change in

statutory caselaw that applies retroactively in cases on collateral review” and

the prisoner is ‘otherwise barred from challenging the legality of the conviction

under §2255.’ ” (quoting United States v. Tyler, 732 F.3d 241, 246 (3d Cir.

2013))). In other words, the situations where the remedy under §2255 is

“inadequate or ineffective” are rare, and “Dorsainvil’s interpretation of §2255

provides only a ‘narrow exception’ to [2255's] ‘presumptive’ exclusivity.’ ”

Gardner, 845 F.3d at 103 (quoting Okereke, 307 F.3d at 120).

Thus, Holloman, who challenges the validity of his sentence as imposed

by the United States District Court for the Middle District of North Carolina, is

required to raise such a challenge in that sentencing court under 28 U.S.C.

§2255, unless he can show that the remedy under §2255 is “inadequate or

ineffective.” See use 28 U.S.C. §2255(e). Having reviewed the petition and

the underlying record, however, Holloman has not met his burden in showing

that §2255 is an “inadequate or ineffective” remedy under the circumstances

of this case. Indeed, Holloman is neither in a position similar to the petitioners

in Dorsainvil and related cases, nor does he claim that he was convicted of

conduct later deemed to be noncriminal by a change in the law—that is,

Holloman does not claim that he is actually innocent of being a felon in

possession of a firearm, the crime of which he was convicted. Instead,

Holloman claims that the sentencing court incorrectly determined that he

qualified for an enhanced sentence under the ACCA.

Such a sentencing claim, however, does not entitle Holloman to relief

under §2241. See, e.g., Scott v. Shartle, 574 Fed.Appx. 152, 155 (3d Cir.

2014) (nonprecedential) (“[B]ecause [petitioner] is challenging his career

offender designation and is not claiming that he is now innocent of the

predicate offense, he does not fall within the ‘safety valve’ exception created

in In re Dorsainvil and cannot proceed under §2241.” (citing Okereke, 307

F.3d at 120-21)); United States v. Brown, 456 Fed.Appx. 79, 81 (3d Cir. 2012)

(per curiam) (stating, “[wle have held that §2255's ‘safety valve’ applies only

in rare circumstances, such as when an intervening change in the statute

under which the petitioner was convicted renders the petitioner's conduct

non-criminal. [Petitioner] has not satisfied that standard here, as he makes no

allegation that he is actually innocent of the crime for which he was convicted,

but instead asserts only that he is ‘innocent’ of being a career offender.”

(citations omitted)); Sliney v. Purdue, No. 1:15-CV-1410, 2015 WL 6690212,

at *2 (M.D. Pa. Oct. 30, 2015) (Jones, J.) (concluding that §2255, not §2241,

was the appropriate section to address petitioner's claim that he was

improperly sentenced as an armed career criminal, and explaining that

“innocence of a sentence enhancement is not the same as actual innocence

of the underlying criminal offense such that the remedy afforded by §2255

would be inadequate or ineffective.”); Lee v. Baltazar, No. 4:17-CV-315, 2017

WL 1386253, at *2 (M.D. Pa. Apr. 18, 2017) (Brann, J.) (dismissing §2241

habeas corpus petition for lack of jurisdiction, where petitioner's claim was

“not based upon a contention that the conduct which led to his conviction

[was] no longer criminal as a result of some change in the law[,]” but was

instead based upon a challenge to “the legality of his ACCA sentence

enhancement.”).

Because there is no basis for a determination that the remedy under

§2255 is “inadequate or ineffective” to test the legality of Holloman's

sentence, his §2241 petition will be dismissed for lack of jurisdiction.

Holloman does not state that he has requested permission from the United

States District Court of Appeals for the Fourth Circuit for leave to file a

successive petition. Thus, there remains that possibility that Holloman would

be granted permission by the Court of Appeals to file a successive §2255

motion, if appropriate. Accordingly, the Court will dismiss Holloman’s petition

for a writ of habeas corpus under 28 U.S.C. §2241, without prejudice to any

right Petitioner may have to seek leave to file a second or successive §2255

motion.

9

III. Conclusion

Based on the foregoing, the petition (Doc. 1) for a writ of habeas corpus

pursuant to 28 U.S.C. §2241 filed by Petitioner will be DISMISSED for lack of

jurisdiction. An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: August 13, 2019

18-0130-01