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Howard Hudson v. Warden

May 12, 2011

HOWARD HUDSON, PETITIONER,
v.
WARDEN, RESPONDENT.



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

NOT FOR PUBLICATION

OPINION

Petitioner Howard Hudson, a prisoner currently confined at the Federal Correctional Institution at Fairton, New Jersey, submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and an application to proceed in forma pauperis. Petitioner's application to proceed in forma pauperis will be granted. Because it appears from a review of the petition that this Court lacks jurisdiction to consider this petition, and that it is not in the interest of justice to transfer, this Court will dismiss the petition. See 28 U.S.C. §§ 1631, 2243, 2244(a), 2255.

BACKGROUND

According to the allegations of the petition and docket from Petitioner's criminal case, on February 4, 1994, Petitioner was found guilty by jury verdict to various counts of drug and firearms charges in the United States District Court, Eastern District of Virginia. See United States v. Hudson, 93-cr-156 (JEB)(E.D. Va.)(docket entry 115). Petitioner was sentenced on May 19, 1994 (docket entry 133) to an aggregate term of life imprisonment plus consecutive terms of 60 months and 140 months. On December 7, 1995, the Court of Appeals for the Fourth Circuit affirmed Petitioner's conviction and sentences.

On May 25, 2005, Petitioner filed a motion for the reduction of sentence, pursuant to 18 U.S.C. § 3582(c), and a petition under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence (docket entry 350). In his § 2255 motion, Petitioner argued that the trial court erred in calculating the drug amounts attributed to him and the sufficiency of the evidence presented against him. (Petition, p. 5). The motions were denied in a consolidated order dated September 12, 1997. (Pet. p. 5).

On June 18, 2001, Petitioner filed an application for leave to file a second or successive § 2255 motion in light of the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), (Pet., p. 5), which was denied by the Court of Appeals on July 18, 2001 (Pet., p. 6).

On April 26, 2007, Petitioner filed a motion for modification of sentence, pursuant to 18 U.S.C. § 3582(c)(2), which was granted. On May 16, 2007, an amended judgment was entered adjusting Petitioner's sentence; the life sentence was reduced to 360 months (docket entry 364; Pet. p. 6).

On March 3, 2008, Petitioner filed a motion for retroactive application of sentencing guidelines to crack cocaine offenses (docket entry 378). The motion was denied on April 25, 2008, and Petitioner appealed to the Court of Appeals for the Fourth Circuit (docket entries 386, 391). On August 25, 2008, Petitioner filed a motion to vacate under 28 U.S.C. § 2255 (docket entry 401; see also Hudson v. United States, 08-cv-404 (HCM)(E.D. Va.). The § 2255 motion was dismissed on September 18, 2008 (docket entry 401). Petitioner's appeals to the Court of Appeals were denied.

Petitioner now files a habeas petition, pursuant to 28 U.S.C. § 2241, arguing that he is "actually innocent" of a sentencing enhancement. He argues that with regard to crack cocaine sentences, "Congress changed the statutory sentencing under § 841(b)(1)(A) to 50 grams or more, which now replaces 50 grams of crack under § 841(b)(1)(A) with 280 grams of crack. Movant's new sentencing range under (b)(1)(A) is now (b)(1)(A) for the 50 grams or more charged in the indictment. This statutory change alters movant's indictment, sentence and changeshis supervised release from 5 years to 3 years." (Pet., p. 11). Petitioner argues that § 2241 is available to challenge his sentence.

DISCUSSION

A. Jurisdiction

A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal district court can dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. ...


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