August 29, 2013
URAIN ROBINSON, Petitioner,
JORDAN R. HOLLINGSWORTH, Respondents.
URAIN ROBINSON, #39125-083, FCI Fort Dix, Fort Dix, NJ, Petitioner Pro Se.
ROBERT B. KUGLER, District Judge.
Urain Robinson, a federal prisoner confined at FCI Fort Dix in New Jersey, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging his imprisonment pursuant to a federal sentence imposed in 2005 by the United States District Court for the Eastern District of Virginia. See United States v. Robinson, 205 F.Appx. 978 (4th Cir. 2006). This Court dismissed the Petition for lack of jurisdiction. Presently before this Court is Robinson's motion for reconsideration. For the reasons expressed below, this Court will deny the motion.
In his § 2241 Petition, Robinson challenged his conviction and sentence on three grounds: (1) "a motion pursuant to 28 U.S.C. § 2255 is inadequate or ineffective' to test the legality of his claims"; (2) "he is actually innocent of being a career offender, under United States Sentencing Guidelines, Section 4B1.1"; and (3) "the sentence otherwise applicable has expired, due to a re-interpretation of the statute of conviction, Title 21 United States Code, Section 841." (ECF No. 1 at 2.) In his memorandum, he explained that § 2255 was inadequate or ineffective because his "claims [were] based on retroactively applicable new substantive changes in a federal sentencing provision... that was either foreclosed or not available to him during trial, appeal or first § 2255 motion." Id. at 9. (citations omitted). He further argued that he was actually innocent of being a career offender because his prior Virginia juvenile and state convictions do not qualify as predicates for enhancement under U.S.S.G. § 4B1.1, Begay v. United States, 553 U.S. 137 (2008), and United States v. Johnson, 587 F.3d 203, 210 (3d Cir. 2009).
In an Opinion filed January 11, 2013, this Court dismissed the Petition for lack of jurisdiction because 28 U.S.C. § 2255 was not an inadequate or ineffective remedy to test the legality of Robinson's detention. See 28 U.S.C. § 2255(e); see also In re Dorsainvil, 119 F.3d 245, 250 (3d Cir. 1997). This Court considered Robinson's argument that he was actually innocent of the career offender sentencing enhancement on the basis of the Supreme Court's decision in Begay v. United States , which was not decided until after he had pursued relief under § 2255. Nevertheless, this Court found that § 2255 was not inadequate or ineffective for this ground because Robinson did not contend that, as a result of a Supreme Court decision issued subsequent to his § 2255 motion, the conduct for which he was convicted - possession with intent to distribute cocaine - became non-criminal. See Dorsainvil, 119 F.3d at 250; Okereke v. United States, 307 F.3d 117 (3d Cir. 2002). This Court also noted that the Third Circuit had affirmed the dismissal of § 2241 petitions for lack of jurisdiction which challenged career offender enhancements. See, e.g., Bowens v. United States, 508 F.Appx. 96 (3d Cir. 2013) (holding that section 2255 is not inadequate or ineffective remedy for claim that Bowens was "improperly classified as a career offender because he did not have the requisite two prior felony convictions'"); Johnson v. Scism, 464 F.Appx. 87 (3d Cir. May 14, 2012) (holding that petitioner's challenge to his designation as a career offender does not fall within Dorsainvil exception); Middleton v. Ebbert, 467 F.Appx. 105 (3d Cir. 2012) (same).
In his motion for reconsideration, Robinson relies on Pollard v. Yost, 406 F.Appx. 635, 638 n.5 (3d Cir. 2011). Citing Pollard, he argues that "the Third Circuit did not foreclose the possibility that Dorsainvil could be applied to a petitioner who can show that his or her sentence would have been lower but for a change in substantive law made after exhaustion of the petitioner's direct and collateral appeals.'" (Motion, ECF No. 4 at 2.)
II. STANDARD OF REVIEW
A postjudgment motion "will be considered a Rule 59(e) motion where it involves reconsideration of matters properly encompassed in a decision on the merits.'" Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989) (quoting White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 451 (1982)). This Court accordingly construes Robinson's motion as a Rule 59(e) motion. "The scope of a motion for reconsideration... is extremely limited." Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). "Such motions are not to be used as an opportunity to relitigate the case; rather, they may be used only to correct manifest errors of law or fact or to present newly discovered evidence." Id. "[A] proper Rule 59(e) motion... must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice." Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013) (quoting Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)).
Presumably, Robinson argues that alteration or amendment of the Order dismissing his Petition for lack of jurisdiction is necessary to correct an error of law and to prevent manifest injustice. To this end, he relies on Pollard. In Pollard, the Third Circuit stated that Dorsainvil did not foreclose the argument that § 2255 is an inadequate or ineffective remedy for a § 2241 petitioner who can show that, due to a change in the law after his direct and collateral appeals regarding what constitutes a predicate crime for ACCA purposes, his sentence should be lower. (Motion, ECF No. 4 at 2.)
In Pollard, petitioner filed a § 2241 claiming that he was actually innocent of a career offender classification due to a change in the law subsequent to his appeals holding that the offense that gave rise, in part, to his career offender classification, was no longer a predicate offense. The district court dismissed the petition and Pollard appealed. Although the Third Circuit affirmed the dismissal of the § 2241 petition on the ground that § 2255 was not an inadequate or ineffective remedy, the Pollard panel made the following two statements in dicta: "[W]e have yet to decide whether innocence of the sentence may also be grounds for applying the § 2255(e) savings clause, " Pollard, 406 F.Appx. at 637-38, and "we do not foreclose the possibility that Dorsainvil could be applied to a petitioner who can show that his or her sentence would have been lower but for a change in substantive law made after exhaustion of the petitioner's direct and collateral appeals under § 2255." Id. at 638.
It may be argued that Dorsainvil did not foreclose the question of "whether innocence of the sentence may also be grounds for applying the § 2255 savings clause." Pollard, 406 F.Appx. at 638. But the Third Circuit's precedential holding in Okereke v. United States, 307 F.3d 117 (3d Cir. 2002), forecloses Robinson's argument and undermines the dicta in Pollard.  In Okereke, petitioner argued to the district court that his sentence violated the Supreme Court's subsequent holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the judge increased his sentence on the basis of drug quantity not found by a jury. The Third Circuit emphasized that the district court had "misconstrued the narrowness of our holding in In re Dorsainvil. " Okereke, 307 F.3d at 120. The Third Circuit rejected Okereke's contention:
Unlike the intervening change in law in In re Dorsainvil that potentially made the crime for which that petitioner was convicted non-criminal, Apprendi dealt with sentencing and did not render conspiracy to import heroin, the crime for which Okereke was convicted, not criminal. Accordingly, under our In re Dorsainvil decision, § 2255 was not inadequate or ineffective for Okereke to raise his Apprendi argument.
Id. at 121.
In this case, this Court found in its initial Opinion that an intervening change in case law potentially affecting a career offender enhancement does not render § 2255 an inadequate or ineffective remedy. This Court is bound by Okereke, and therefore must reject Robinson's contention, based on the non-precedential decision in Pollard, that this Court committed an error of law. Indeed, recent non-precedential decisions depart from the dicta in Pollard, and follow Okereke instead. For example, in McIntosh v. Shartle, C.A. No. 13-1060, 2013 WL 1926394 (3d Cir. May 10, 2013), the Third Circuit held that that § 2255 is not inadequate or ineffective for petitioner's claim that he is actually innocent of being a career offender under Begay v. United States . The Court relied on Okereke for the proposition that "petitioner is barred from proceeding under § 2241 because his argument was based on sentencing and did not render the crime he was convicted of not criminal", since "[i]n Dorsainvil, [the Court] held that a defendant may proceed via § 2241 when a subsequent statutory interpretation renders the defendant's conduct no longer criminal." McIntosh at *1. See also Johnson v. Scism, 464 F.Appx. 87 (3d Cir. 2012) (same); United States v. Brown, 456 F.Appx. 79 (3d Cir. 2012) (holding that § 2255 is not inadequate or ineffective for challenge to career offender enhancement under Begay because Brown "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."); Selby v. Scism, 453 F.Appx. 266, 268 (3d Cir. 2011) ("Selby does not argue that he is innocent of the offense for which he was convicted; he argues that he is innocent' of a sentencing enhancement because of an intervening change in law. Accordingly, the exception described in In re Dorsainvil does not apply.") This Court will deny Robinson's motion for reconsideration.
For the foregoing reasons, this Court denies Petitioner's motion to reconsider the Order dismissing his Petition.