United States District Court, D. New Jersey
Davender, Petitioner Pro se.
HILLMAN, District Judge.
Todd Davender, 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. (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.
United States District Court for the District of Connecticut
provided the following summary of Petitioner's underlying
After his arrest on August 27, 2000, the petitioner was
arraigned in this court on September 20, 2000 on various
narcotics charges stemming from incidents that occurred from
June 1999 to August 2000. On November 6, 2001, a jury found
the petitioner guilty of one count of conspiracy to possess
with intent to distribute fifty grams or more of cocaine base
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)
and 846, one count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and two
counts of conspiracy to possess with intent to distribute
five hundred grams or more of cocaine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B). On January 25,
2002, United States District Judge Janet C. Hall sentenced
the petitioner to a total effective sentence of 360 months of
The petitioner appealed his conviction. On November 12, 2003,
the Court of Appeals for the Second Circuit affirmed the
judgment of conviction.
On October 1, 2004, the petitioner filed a motion to vacate
or set aside sentence claiming ineffective assistance of
trial and appellate counsel, prosecutorial misconduct and
trial court error as to the calculation of his sentence. On
May 2, 2008, the court denied the motion. On November 30,
2009, the United States Court of Appeals for the Second
Circuit dismissed the petitioner's appeal from the denial
of the section 2255 motion.
On November 29, 2011, the petitioner filed a motion for
modification of his sentence pursuant to 18 U.S.C. §
3582(c)(2). He argued that the court should reduce his
sentence because Amendment 750 to the United States
Sentencing Guidelines, effective on November 1, 2011, reduced
the base offense levels applicable to crack cocaine offenses
and applied retroactively. On December 21, 2011, the court
granted his motion and reduced his total effective sentence
to 324 months of imprisonment.
Davender v. U.S., No. 11-568, 2012 WL 6649588, at *1
(D. Conn. Dec. 19, 2012) (internal docket citations omitted).
Petitioner filed a second motion to modify his sentence,
based on Amendment 782, which was granted and his sentenced
reduced to 262 months. U.S. v. Davender, 00-44 (D.
23, 2016, Petitioner filed a request for permission to file a
second or successive § 2255 petition pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015) with
the Second Circuit. Davender v. U.S., Civil Action
No. 16-2109 (2d Cir. 2016). The court denied his request.
(Id.) Petitioner thereafter filed another request to
file a second or successive petition, raising various claims
including a claim based on Mathis v. United States,
136 S.Ct. 2243 (2016). Davender v. U.S., Civil
Action No. 17-599. The court again denied permission.
his request was pending before the Second Circuit, Petitioner
filed the instant habeas Petition. (ECF No. 1.) He argues
that: (1) his counsel was ineffective for failing to argue
that his § 851 enhancement no longer applied because of
Alleyne v. United States, 133 S.Ct. 2151 (2013); (2)
a prior conviction used to enhance his sentence no longer
qualifies in light of Mathis and United States
v. Hinkle, 832 F.3d 569 (5th Cir. 2016); and (3) the
trial court judge abused her discretion by failing to conduct
a “multi factor analysis” when Petitioner
objected to the usage of a prior conviction in sentencing.