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Savage v. Kirby

United States District Court, D. New Jersey

November 22, 2017

CLIFTON SAVAGE, Petitioner,
v.
WARDEN MARK KIRBY, Respondent.

          Clifton Savage Federal Correctional Institution Petitioner Pro se

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Clifton Savage, 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 No. 1.) 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.

         I. BACKGROUND

         On April 26, 2010, after a jury trial before the United States District Court for the Eastern District of Pennsylvania, Petitioner was convicted of one count of possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g) and 924(e). U.S. v. Savage, Criminal Action No. 09-600 (E.D. Pa. 2010.) On January 3, 2011, the court sentenced him to 180 months' incarceration. Id. Petitioner filed a direct appeal challenging the constitutionality of § 922(g). U.S. v. Savage, Criminal Action No. 11-1014 (3d Cir. 2011). On September 9, 2011, the Court of Appeals for the Third Circuit summarily affirmed his conviction. Id. The United States Supreme Court denied his petition for certiorari on January 9, 2012. Savage v. United States, 132 S.Ct. 1057 (2012).

         On October 29, 2015, Petitioner filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 with the district court in the Eastern District of Pennsylvania. Savage v. U.S., Civil Action No. 15-5903 (E.D. Pa. 2015). He argued that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), rendered 18 U.S.C. §924(e)(2)(B) unconstitutional and invalidated his sentence. Id. The sentencing court denied relief and it does not appear that he filed an appeal with the Third Circuit. Id.

         On March 20, 2017, Petitioner filed an application with the Third Circuit for permission to file a second or successive § 2255 petition in light of Johnson and Mathis v. United States, 136 S.Ct. 2243 (2016). In Re: Clifton Savage, Civil Action No. 17-1667 (3d Cir. 2017). The Third Circuit denied permission. Id.

         Petitioner appears to have filed the instant habeas petition at the same time as his application for permission to file a second or successive § 2255 petition with the Third Circuit. (ECF No. 1.) The brief filed in support of the instant § 2241 Petition is nearly identical to the brief filed with the Third Circuit. In both, Petitioner argues that his sentence enhancement under the Armed Career Criminal Act was rendered unconstitutional by the Supreme Court's holdings in Johnson and Mathis. (Id.)

         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. Schultz, 708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§ 2243, 2255.

         B. ...


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