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PERRY v. MINER

September 9, 2005.

ANGELO B. PERRY, Petitioner,
v.
JONATHAN C. MINER, Respondent.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

Petitioner Angelo B. Perry, a federal prisoner currently confined at the Federal Correctional Institution at Fairton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,*fn1 challenging the conviction and sentence pursuant to which he is confined. Because this Court lacks jurisdiction to consider this Petition, and it is not in the interest of justice to transfer the Petition, this Court will dismiss the Petition, without prejudice, for lack of jurisdiction.

  I. BACKGROUND

  The following background facts are taken from the Petition and attachments, and are accepted as true for purposes of this Opinion and accompanying Order.

  On June 7, 1993, Petitioner pleaded guilty in the U.S. District Court for the Middle District of Georgia to possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a). On November 8, 1993, he was sentenced to a term of imprisonment of 163 months, pursuant to which he remains confined.

  Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, which was denied. The denial was affirmed on appeal to the Court of Appeals for the Eleventh Circuit. In its opinion, entered March 17, 1997, the Court of Appeals described the evidence supporting his conviction, including some evidence which Petitioner states was not included in the indictment or provided to his counsel before Petitioner entered his guilty plea.

  On April 27, 2005, this Court received Petitioner's § 2241 habeas Petition, dated April 23, 2005, alleging (1) that his guilty plea was not made knowingly and voluntarily, because he was not aware of the information referred to by the Court of Appeals in its March 17, 1997, opinion and (2) that his sentence is illegal, because it is based upon information contained in the pre-sentence report, respecting the nature of the conspiracy and the amount of cocaine involved in the conspiracy, that he did not admit to during the guilty plea and that were not found by a jury beyond a reasonable doubt.*fn2 Petitioner cites United States v. Booker, 125 S.Ct. 738 (2005), in support of his argument that the mandatory minimum sentence imposed pursuant to the U.S. Sentencing Guidelines is invalid.*fn3

  Petitioner has filed two Motions for leave to file an Amended Petition, (Docket Entries Nos. 2, 4), neither of which raises claims different from those asserted in the original Petition. Accordingly, the motions for leave to file amended petitions will be denied.

  In addition, Petitioner has moved (Docket Entry No. 8) to alter or amend this Court's Order entered July 21, 2005, denying the Motion for Bail. This Court's disposition of the Petition renders this motion moot.

  II. ANALYSIS

  A. Sua Sponte Dismissal

  "Habeas corpus petitions must meet heightened pleading requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). A petition must "specify all the grounds for relief" and set forth "facts supporting each of the grounds thus specified." See 28 U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004), applicable to § 2241 petitions through Habeas Rule 1(b).

  A court presented with 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 there." 28 U.S.C. § 2243. Thus, "Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland, 512 U.S. at 856; see also United ...


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