The opinion of the court was delivered by: Simandle, District Judge
Petitioner, William Smith, 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. Smith's motion for leave to file supplemental pleadings, which was filed on or about October 20, 2010, will be denied as moot.
The following facts are taken from the petition and the motion for leave to file a supplemental pleading, 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 on or about June 9, 1997, in the United States District Court for the District of Massachusetts, on charges of being a felon in possession of a weapon and ammunition in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 262 months imprisonment. Petitioner filed a direct appeal before the United States Court of Appeals for the First Circuit, which affirmed the conviction and sentence on August 29, 2002. His petition for a writ of certiorari was denied by the Supreme Court on March 24, 2003.
It appears that Petitioner filed his first motion under 28 U.S.C. § 2255 in 2009, claiming that the Supreme Court had created a new rule of constitutional law entitling Petitioner to relief. His motion was denied by the sentencing court on July 24, 2009. Petitioner appealed to the Court of Appeals for the First Circuit, which affirmed denial of the § 2255 motion on September 28, 2009. Thereafter, it appears that Petitioner attempted to file a § 2241 habeas petition before the sentencing court, claiming that he was actually innocent of the enhanced charge. That action was dismissed on November 30, 2009.
In a supplemental pleading submitted to this Court on October 19, 2010, Petitioner shows that he sought permission from the First Circuit to file a second or successive motion under § 2255. Petitioner asserts that his request was based on "newly discovered evidence on part of his enhancement under United States Sentencing Guidelines ("USSG") § 4B1.4(B)(3)(A), for having possessed a firearm in connection with a controlled substance offense, with a victim impact, that he is actually innocent of committing." (See Petitioner's Motion for a Supplemental Pleading at pg. 3).
On June 22, 2010, the First Circuit entered judgment denying Petitioner leave to file a second or successive § 2255 motion. The court found that: enhancement was not dependent on the presence of a crime victim; rather, it was triggered because petitioner was found to have "used or possessed the firearm or ammunition in connection with a ... controlled substance offense." § 4B1.4(b)(3)(A). Nor is petitioner correct in suggesting that the absence of victims necessarily discredits the testimony of the government's principal cooperating witness. In any event, this very same contention was raised by petitioner and rejected by this court in an earlier application for leave to file a second or successive petition. See 1st Cir. No. 09-2254 (Sept. 28, 2009 judgment). Petitioner has thus failed to satisfy the pertinent § 2255(h) gatekeeping criterion.
(See Petitioner's Motion for a Supplemental Pleading at Judgment in Smith v. United States, 1st Cir. No. 10-1632 (June 22, 2010 Judgment)).
Petitioner filed this § 2241 habeas petition on or about June 25, 2010. Petitioner attempts to challenge his sentence as enhanced on a claim of actual innocence and "newly discovered evidence under U.S.S.G. § 4B1.4(B)(3)(A) pursuant to § 3771 victim impact showing [his] actual innocence."
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 ...