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Irving Mason v. Warden Donna Zickefoose

January 4, 2011

IRVING MASON, PETITIONER,
v.
WARDEN DONNA ZICKEFOOSE, RESPONDENT.



The opinion of the court was delivered by: Noel L. Hillman United States District Judge

NOT FOR PUBLICATION

OPINION

Petitioner, Irving Mason, a federal prisoner confined at the Federal Correctional Institution in Fort Dix, New Jersey ("FCI Fort Dix"), brings this habeas petition pursuant to 28 U.S.C. § 2241, challenging his federal conviction. Petitioner names as party respondent, Warden Donna Zickefoose, as the person having custody over him pursuant to 28 U.S.C. § 2242.

This Court has reviewed the petition, and for the reasons set forth below, will dismiss this habeas action for lack of jurisdiction, as it is a prohibited second or successive motion under 28 U.S.C. § 2255.

I. BACKGROUND

The following facts are taken from the petition, and are accepted for purposes of this screening only. The Court has made no findings as to the veracity of petitioner's allegations.

Petitioner states that he was convicted by a lengthy jury trial, in the United States District Court for the Southern District of New York, on July 28, 2000, on charges of conducting and participating in the affairs of a racketeering enterprise in violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO")(18 U.S.C. § 1962), RICO conspiracy (18 U.S.C. § 1962(d)), conspiracy to commit robbery (18 U.S.C. § 1951), attempted robbery (18 U.S.C. §§ 1951, 1952), possessing a firearm (18 U.S.C. § 922(g)), and possessing ammunition (18 U.S.C. § 922(g)). On April 18, 2001, Petitioner was sentenced to thirty (30) years imprisonment.

Petitioner appealed from his conviction and sentence, and on November 21, 2002, the United States Court of Appeals for the Second Circuit affirmed the judgment of conviction. The Supreme Court denied certiorari in 2003. See United States v. Mitchell, 51 Fed. Appx. 355 (2d Cir. Nov. 21, 2002), cert. denied, 538 U.S. 939 (2003).

Thereafter, Petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255, which was denied by the Honorable John F. Keenan, U.S.D.J. of the Southern District of New York, on August 9, 2005. Judge Keenan denied Petitioner's motion for a certificate of appealability on October 6, 2005. Petitioner then filed a motion to vacate his sentence and conviction pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, or alternatively, 28 U.S.C. § 1651(a). Judge Keenan denied Petitioner relief in an opinion entered on May 6, 2009. Mason v. United States, 2009 WL 1250158 (S.D.N.Y. May 6, 2009). Petitioner filed a notice of appeal on July 9, 2009, but a certificate of appealability was denied on August 20, 2009.

Mason v. United States, 2009 WL 2575855 (S.D.N.Y. Aug. 20, 2009).

Petitioner filed the instant application for habeas relief on or about January 14, 2010. He paid the filing fee on May 27, 2010. Petitioner asserts the following grounds for habeas relief. First, Petitioner argues that he is entitled to relief by a habeas petition under 28 U.S.C. § 2241 as a result of an intervening change of law. Namely, Petitioner contends that he is actually innocent of a Hobbs Act violation, based on United States v. Parkes, 497 F.3d 220 (2d Cir. 2007), which purportedly found that the conduct similar to which Petitioner was convicted was not criminal.

Second, Petitioner contends that the United States District Court for the Southern District of New York lacked subject matter jurisdiction to convict and sentence him.

Petitioner states that he raised these two arguments for the first time in his Rule 60(b) motion, filed on November 26, 2008, and his motion for reconsideration, filed on May 15, 2009.

II. DISCUSSION A. Standards for a Sua Sponte Dismissal Section 2243 provides in relevant part as follows: A court, justice or judge entertaining an application for a 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 ...


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