United States District Court, D. New Jersey
MEMORANDUM OPINION
Susan
D. Wigenton, United States District Judge
IT
APPEARING THAT:
1. On
or about June 30, 2016, pro se Petitioner Justin
Cabot filed a motion to vacate his sentence pursuant to 28
U.S.C. § 2255. (ECF No. 1). In his motion, Petitioner
raises two claims: first, a claim based on Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551 (2015) in
which he asserts that the residual clause of the Career
Offender provision of the United States Sentencing Guidelines
is void for vagueness and that his receiving that enhancement
pursuant to the residual clause was therefore improper, and a
claim in which he challenges the execution of his sentence by
the Bureau of Prisons (BOP) insomuch as his consecutive and
concurrent sentences are allegedly being improperly
calculated by the BOP. (Id.).
2. On
June 23, 2016, Chief Judge Simandle entered Standing Order
16-2, which stayed all § 2255 motions, including
Petitioner's, which raised claims based on the Supreme
Court's ruling in Johnson v. United States, __
U.S. __, 135 S.Ct. 2551 (2015). This Court entered an order
on August 3, 2016, advising Petitioner of the stay.
3. As
the standing order's stay period has now elapsed, this
Court is required by Rule 4 of the Rules Governing Section
2255 Proceedings to review Petitioner's motion and
"dismiss the motion" if it "plainly appears
from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief." Pursuant to this rule, a district court is
"authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face."
McFarland v. Scott, 512 U.S. 849, 856 (1994).
4. In
his first claim, Petitioner asserts that residual clause of
the Career Offender Guideline, U.S.S.G. § 4Bl.2(a), was
rendered void for vagueness by Johnson and that his
prior felony convictions no longer serve as predicate
offenses sufficient to establish the applicability of the
Career Offender Guideline to his sentence. The inherent flaw
in that argument, however, is that the Supreme Court ruled in
Beckles v. United States, __ U.S. __, __, 137 S.Ct.
886, 895 (2017), that "the advisory Sentencing
Guidelines ae not subject to a vagueness challenge under the
Due Process Clause and ... § 4Bl.2(a)'s residual
clause is not void for vagueness." As the residual
clause of the Career Offender Guideline has not been rendered
void for vagueness by Johnson, Petitioner's
assertion that his prior felonies no longer qualify him for
the Career Offender Guideline upward adjustment is without
merit, and his Johnson'Beckles claim must be
denied as such. Id.; see also Pearson v. Warden Canaan
U.S.P., __ F.App'x __, 2017 WL 1363873, at *2 (3d
Cir. Apr. 7, 2017).
5. In
his remaining claim, Petitioner seeks to raise a challenge to
the calculation of his sentence, and asserts that he is not
being given credit for a sentence which he asserts was to run
concurrent with his federal sentence. Because this claim
challenges the execution, rather than the validity, of
Petitioner's sentence, it must be brought pursuant to 28
U.S.C. § 2241 in the district in which Petitioner is
currently confined, in this case the Middle District of
Pennsylvania. See, e.g., Rumsfeld v. Padilla, 542
U.S. 426, 436 (2004); McGee v. Martinez, 627 F.3d
933, 935-37 (3d Cir. 2010); Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005). Coady
v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001). As a
§ 2241 petition can only be brought in the district of
current confinement, and not in the sentencing district, this
Court has no jurisdiction over Petitioner's calculation
of sentence claim, and must therefore either dismiss
Petitioner's calculation claim or transfer it to the
appropriate jurisdiction if a transfer is in the interests of
justice. See 28 U.S.C. § 1631 (permitting
transfer of a matter over which the Court lacks jurisdiction
to the appropriate forum where the Court determines that
"it is in the interest of justice").
6.
Petitioner, however, has already filed a § 2241 petition
challenging the calculation of his sentence in the Middle
District of Pennsylvania in which he asserted a claim
challenging the execution and calculation of his sentence
which appears to be virtually identical to the claim he now
seeks to raise. See Cabot v. Maiorana, No. 15-0900,
2015 WL 4160075 (M.D. Pa. July 9, 2015). The Middle District
denied that petition on the merits, finding that
Petitioner's assertion that he was denied the benefit of
a concurrent state sentence was without merit as
Petitioner's federal sentence was "to run
consecutive to his state sentence."
Id. at *5. As the Middle District has already denied
a claim which appears to be identical to the one Petitioner
now intends to raise, this Court finds that a transfer of
Petitioner's calculation claim to the Middle District
would not be in the interest of justice, and Petitioner's
calculation claim shall therefore be dismissed without
prejudice for lack of jurisdiction.
7.
Finally, because this Court is denying Plaintiffs sole §
2255 claim on the merits, the Court must determine whether
the issuance of a certificate of appealability is warranted.
Pursuant to 28 U.S.C. §2253(c), a petitioner may not
appeal from a final order in a proceeding under § 2255
unless he has "made a substantial showing of the denial
of a constitutional right." "A petitioner satisfies
this standard by demonstrating that jurists of reason could
disagree with the district court's resolution of his
constitutional claims or that jurists could conclude that the
issues presented here are adequate to deserve encouragement
to proceed further." Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). "When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling."
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because
jurists of reason would not disagree with either this
Court's conclusion that Petitioner's
Johnson/Beckles claim is without merit in light of
the Supreme Court's ruling in Beckles or this
Court's finding that it lacks jurisdiction over
Petitioner's calculation claim, Petitioner has failed to
make a substantial showing of the denial of a constitutional
right, and his claims do not deserve encouragement to proceed
further. Petitioner shall therefore be denied a certificate
of appealability.
8. In
conclusion, Petitioner's Johnson/Beckles claim
is DENIED, Petitioner's calculation claim is DISMISSED
for lack of jurisdiction, and Petitioner is DENIED a
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