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White v. Kirby

United States District Court, D. New Jersey

August 8, 2017

ROBERT WHITE, Petitioner,
v.
WARDEN MARK KIRBY, Respondent.

          Robert White Fairton Federal Correctional Institution Petitioner Pro se

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Robert White, a prisoner confined at the Federal Correctional Institution (“FCI”) in Fairton, New Jersey, filed this writ of habeas corpus under 28 U.S.C. § 2241, challenging a sentencing enhancement. (ECF Nos. 1, 2.) At this time, the Court will review the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases, (amended Dec. 1, 2004), made applicable to § 2241 petitions through Rule 1(b) of the Habeas Rules. See also 28 U.S.C. § 2243. For the reasons set forth below, the Petition will be dismissed.[1]

         I. BACKGROUND

         On February 8, 2001, Petitioner was indicted on three counts: distributing crack cocaine, 21 U.S.C. § 841(a)(1); using and carrying a firearm during a drug trafficking crime, 18 U.S.C. § 924(c); and possessing a firearm after being convicted of a felony, 18 U.S.C. § 922(g)(1). U.S. v. White, Crim. Action No. 00-1017 (N.D. Ill. 2001). Petitioner eventually pled guilty and the United States District Court for the Northern District of Illinois sentenced him to 292 months imprisonment on the drug charge and 120 months imprisonment on the § 922(g) count, to be served concurrently. Id. Petitioner did not file a direct appeal. Instead, he filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255 based on ineffective assistance of counsel, which was denied by the district court. White v. U.S., Civil Action No. 04-7616 (N.D. Ill. 2006). The United States Court of Appeals for the Seventh Circuit denied his appeal. White v. United States, 273 F.App'x 559, 560 (7th Cir. 2008).

         Petitioner thereafter filed a request for authorization to file a successive petition with the Seventh Circuit in light of the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015). White v. U.S., Civil Action No. 16-2031 (7thCir. 2016). The Seventh Circuit denied his request. (Id.) In November 2016, Petitioner filed a second request for authorization to file a successive petition with the Seventh Circuit based on Johnson, which the Court of Appeals again denied. White v. U.S., Civil Action No. 16-3858 (7th Cir. 2016).

         Thereafter, Petitioner filed the instant habeas petition seeking relief pursuant to 28 U.S.C. § 2241. (ECF Nos. 1, 2.) Petitioner argues that as a result of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), he no longer qualifies as a career offender under the Guidelines. Specifically, he argues that under Mathis, his 1991 Illinois conviction for possession with intent to deliver should not have been used as a predicate offense to enhance him as a career offender.

         II. DISCUSSION

         A. Legal Standard

         United States Code Title 28, Section 2243, provides in relevant part as follows:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

         A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition must be construed liberally. See Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002). 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. See Denny v. Schult, 708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§ 2243, 2255.

         B. Analysis

         As noted by the Court of Appeals for the Third Circuit in In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 has been the “usual avenue” for federal prisoners seeking to challenge the legality of their confinement. See also Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); United States v. McKeithan, 437 F. App'x 148, 150 (3d Cir. 2011); United States v. Walker, 980 F.Supp. 144, 145-46 (E.D. Pa. 1997) (challenges to a sentence as ...


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