United States District Court, D. New Jersey
ROBERT B. KUGLER, District Judge.
Petitioner, Nezzy Adderly, is a federal prisoner currently incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the habeas petition will be denied.
This habeas petition is the latest attempt by Mr. Adderly contesting his federal sentence. The United States Court of Appeals for the Third Circuit has set forth petitioner's procedural history in the federal courts in multiple opinions: Indeed:
Nezzy Adderly pleaded guilty in the United States District Court for the Eastern District of Pennsylvania to violating 18 U.S.C. § 922(g), and to being an armed career criminal under 18 U.S.C. § 924(e). He was sentenced to the mandatory minimum term of imprisonment of 15 years and three years of supervised release. We affirmed in United States v. Adderly, 306 F.Appx. 766 (3d Cir.2009). In July, 2009, Adderly filed a motion to vacate sentence, 28 U.S.C. § 2255, in the sentencing court, which was denied. See United States v. Adderly, 2010 WL 1047689 (E.D. Pa. March 19, 2010). Adderly appealed at C.A. No. 10-1902, and we denied his request for a certificate of appealability on August 17, 2010.
On November 2, 2011, Adderly filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, in the United States District Court for the District of New Jersey, where he is confined. He argued that he is actually innocent of his 15-year sentence under 18 U.S.C. § 924(e)(1), because his predicate crimes are not violent felonies under the ACCA, see id. at § 924(e)(2). In a memorandum in support, Adderly argued that he objected to the use of the prior convictions at his sentencing hearing, but the objection went unresolved. The District Court dismissed the habeas corpus petition for lack of jurisdiction, finding no basis for application of section 2255's "safety valve." The District Court further noted that Adderly had already raised his claim that his state offenses should not qualify as violent felonies in his section 2255 proceedings, and he could not use habeas corpus to relitigate this issue. We summarily affirmed on January 27, 2012, see Adderly v. Zickefoose, 459 F.Appx. 73 (3d Cir.2012) (prisoner's challenge to armed career criminal sentence does not fall within purview of savings clause).
Several months later, Adderly filed a postjudgment item in the District Court titled "Motion for Adequate Representation of Defendants, " requesting that counsel be appointed to represent him. In the interest of justice, he argued, counsel should be appointed because he may have a valid claim under our not precedential decision in Pollard v. Yost, 406 F.Appx. 635 (3d Cir.2011). He further argued that he had no earlier opportunity to challenge his sentence on the basis of an intervening change in the law, citing Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (defendant's prior battery conviction under Florida law not violent felony under ACCA); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (failure to report conviction under Illinois law not a violent felony *80 under ACCA); and Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (driving under influence conviction under New Mexico law not violent felony under ACCA). In an order entered on July 11, 2012, the District Court denied the motion on the basis of lack of subject matter jurisdiction.
Adderly v. Zickefoose ("Adderly I"), 504 F.Appx. 78, 79-80 (3d Cir. 2012). The Third Circuit affirmed the denial petitioner's "Motion for Adequate Representation." See id. In affirming that denial, the Third Circuit stated as follows:
In Pollard, a panel of this Court held that subject matter jurisdiction over the prisoner's claim of actual innocence of an armed career criminal sentence was lacking. Accordingly, the District Court properly denied his habeas corpus petition, 28 U.S.C. § 2241. However, the District Court's order was affirmed on the basis that the prisoner had not shown that a failure to consider his actual innocence claim would work a miscarriage of justice; the issue of whether the safety valve could be applied to a sentencing claim of actual innocence-for example, where a subsequent change in the law regarding what constitutes a predicate crime renders the sentence invalid-was left open. Pollard, 406 F.Appx. at 638.
Although we consider here only whether the District Court properly denied Adderly's postjudgment counsel motion, it does not appear that Pollard provides a basis for reopening his habeas corpus case, even if he had filed a Rule 60(b) motion. As a threshold matter, Pollard was decided on January 24, 2011, in plenty of time for Adderly to rely on it in his November, 2011 habeas corpus petition. Cf. Gonzalez v. Crosby, 545 U.S. 524, 531-32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (Rule 60(b) motion which seeks to advance substantive claim that was omitted from original petition is in substance impermissible successive habeas corpus petition). The other cases cited by Adderly, Johnson, Chambers, and Begay, also were decided well before he filed his section 2241 petition. Moreover, Adderly pleaded guilty to being an armed career criminal. Having pleaded guilty, we see no complete miscarriage of justice sufficient to justify habeas corpus jurisdiction. As we explained in Pollard, because it was a plea agreement that determined the sentence, it cannot be determined whether the sentence would have been shorter had Johnson, Chambers, and Begay already been decided, see Pollard, 406 F.Appx. at 638 & n. 4.
Adderly I, 504 F.Appx. at 80-81. As Mr. Adderly was proceeding with a § 2241 petition in this Court, he was also seeking to reopen his § 2255 action in the Eastern District of Pennsylvania. Indeed:
On June 20, 2012, Adderly filed a motion under Rule 60(b) in his section 2255 proceedings, arguing that the judgment should be reopened because he is not an armed career criminal under these Supreme Court decisions: Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); and Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). In an order entered on August 2, 2012, the District Court denied the Rule 60(b) motion. Adderly appealed, and we denied his request for a certificate of appealability on the ground that the Rule 60(b) motion was in reality an unauthorized second or successive section 2255 motion, see C.A. No. 12-3280. On December 12, 2012, Adderly filed another Rule 60(b) motion, in which he again argued that he did not have the required number of violent felonies to be classified as an armed career criminal. The District Court denied the motion as untimely and duplicative of the earlier Rule 60(b) motion. Adderly appealed, and we denied his request for a certificate of appealability, concluding that reasonable jurists would not find it debatable, Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), that Adderly's latest Rule 60(b) motion was in reality an unauthorized second or successive motion to vacate sentence, and that the District Court lacked jurisdiction to consider it. See C.A. No. 12-4571.
Meanwhile, on January 4, 2013, Adderly filed an item in the district court titled "Petition in Support of Raising a Federal Question Pursuant to Title 28 U.S.C. § 1331." In this petition, Adderly argued that the District Court, in making its prior ACCA violent felonies determination, had failed to apply the categorical or modified categorical approach as required by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Had the court done so, Adderly argued, it would have discovered that his three state robbery convictions pursuant to 18 Pa. Cons. Stat. Ann. § 3701 were not violent felonies under the ACCA, 18 U.S.C. § 924(e)(2)(B). When the District Court did not timely rule on this "Petition, " Adderly filed a petition for writ of mandamus in this Court. We denied mandamus relief, concluding that the January, 2013 "Petition" presented the same issue Adderly had tried unsuccessfully to pursue in his prior Rule 60(b) motions, and like his Rule 60(b) motions, it sought to advance one or more substantive claims attacking his armed career criminal sentence. It thus qualified as second or successive section 2255 motion which could not proceed in the district court without prior authorization from a court of appeals. See In re: Adderly, 522 F.Appx. 151, 153 (3d Cir.2013).
In June, 2013, Adderly sought leave in this Court to file a second or successive section 2255 motion, contending that he had newly discovered evidence-the record of his three 1985 robbery convictions and 1988 conspiracy to commit robbery conviction- to prove that he is not an armed career criminal under the
"modified categorical approach" of Shepard, 544 U.S. 13, 125 S.Ct. 1254. We denied him leave to file a second or successive section 2255 motion, concluding that he could not meet the gatekeeping requirements of section 2255(h), and that the federal question jurisdictional statute, 28 U.S.C. § 1331, did not supply an independent basis for ...