United States District Court, D. New Jersey
ROBERT B. KUGLER, District Judge.
Petitioner is a federal prisoner currently incarcerated at F.C.I. Fairton in Fairton, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Previously, this matter was administratively terminated as petitioner had neither paid the $5.00 filing fee nor submitted an application to proceed in forma pauperis. On January 7, 2015, the Court received petitioner's $5.00 filing fee. Therefore, the Clerk will be ordered to reopen this case. For the following reasons, the habeas petition will be summarily dismissed for lack of jurisdiction.
The factual and procedural background of this case was set forth in part by Judge Wigenton in Rothwell v. United States, No. 13-6671, 2013 WL 6049750 (D.N.J. Nov. 14, 2013):
On April 9, 1996, the Government filed an indictment charging petitioner with three counts: Count I, conspiracy in violation of 18 U.S.C. § 371; Count II, attempted bank robbery in violation of 18 U.S.C. § 2113(a); and Count III, entering a bank with the intent to steal or rob in violation of 18 U.S.C. § 2113(a). ( USA v. Rothwell, Docket No. 2:96-cr-00196.)
On November 11, 1996, a jury found Petitioner guilty of Count I and acquitted Petitioner on Counts II and III. On April 8, 1997, the sentencing court determined that Petitioner was subject to the enhanced penalty provision of 18 U.S.C. § 3559(c) ("the Three Strikes law"), and sentenced Petitioner to life imprisonment.
Petitioner filed a timely appeal. On February 4, 1998, the United States Court of Appeals for the Third Circuit affirmed the district court's judgment of conviction and sentence. U.S. v. Rothwell, 142 F.3d 430 (3d Cir. 1998). Petitioner applied for writ of certiorari, which the Supreme Court denied on May 18, 1998. Rothwell v. U.S., 523 U.S. 1131 (1998).
On May 17, 1999, Petitioner filed a motion for collateral or habeas review pursuant to 28 U.S.C. § 2255. ( Rothwell v. USA, Docket No. 2-99-cv-02258 (JWB).) In his motion for habeas relief, Petitioner argued: (1) that he received ineffective assistance of counsel because his attorney failed to object to the use of the predicate offense carrying the highest penalty, and his trial counsel failed to make a timely objection to the application of the Three Strikes law; and (ii) that the sentence imposed upon Petitioner pursuant to the Three Strikes law violated the Fifth Amendment to the United States Constitution and that his sentence was defective, resulting in a "complete miscarriage of justice." ( Id. Docket # 1.)
On January 8, 2002, the Honorable John W. Bissell, U.S.D.J., dismissed all of Petitioner's claims, with the exception of Petitioner's claim under Apprendi v. New Jersey, 530 U.S. 466 (2000), which the court denied without prejudice. ( Rothwell v. USA, Docket No. 2-99-cv-02258 (JWB) at Dkt. ## 9, 10.) Petitioner appealed from denial of his § 2255 motion, and on March 4, 2002, the Third Circuit denied his appeal. On July 1, 2004, the Supreme Court denied Petitioner's writ of certiorari. ( Id. at Dkt. # 15.)
Thereafter, on September 26, 2005, Petitioner filed a motion under Federal Rules of Civil procedure 60(b), seeking reconsideration of the denial of his § 2255 motion. ( Id. at Dkt. # 16.) Petitioner again argued that his trial counsel was ineffective because counsel failed to inform the District Court at sentencing about law that would have precluded application of the Three Strikes law. ( Id. ) On August 26, 2008, the Honorable Stanley R. Chesler, U.S.D.J., dismissed Petitioner's Rule 60(b) motion on the ground that it was a successive motion for relief under 28 U.S.C. § 2255, and Petitioner had not first obtained certification from the Third Circuit for the District Court to hear such a motion, as required under § 2255, and Petitioner had not first obtained certification from the Third Circuit for the District court to hear such a motion, as required under § 2255(h). ( Id. at Dkt. # 21.)
On November 5, 2008, Petitioner filed an appeal from denial of his Rule 60(b) motion. ( Id. at Dkt. # 22.) The Third Circuit denied issuance of a certificate of appealability on May 21, 2009, finding that no reasonable jurist would debate the correctness of the District Court's decision to treat Petitioner's Rule 60(b) motion as a prohibited second or successive motion under § 2255. ( Id. at Dkt. # 27.)
Rothwell v. United States, No. 13-6671, 2013 WL 6049750, at *1-2 (D.N.J. Nov. 14, 2013).
Subsequently, petitioner filed a petition for writ of coram nobis and/or audita querela. That petition sought to reopen his case for resentencing on the ground that the Court was without authority to impose a mandatory life sentence under the Three Strikes Law because petitioner's offense of conspiracy to commit robbery was purportedly a non-qualifying serious violent felony under 18 U.S.C. § 3559(c)(3)(A)(1). See Rothwell, 2013 WL 6049750, at *2. Judge Wigenton ultimately determined that petitioner could not bring a coram nobis petition because he was still in custody for purposes of section 2255. See id. (citing United States v. Baptiste, 223 F.3d 188, 189 (3d Cir. 2000)). Additionally, Judge Wigenton noted that petitioner could not invoke audita querela as his claim was cognizable under section 2255. See id. Thus, the petition for writ of ...