Davender v. Kirby

          Todd Davender, Petitioner Pro se.

          OPINION

          HILLMAN, District Judge.

         Petitioner 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.

         I. BACKGROUND

         The United States District Court for the District of Connecticut provided the following summary of Petitioner's underlying criminal matter:

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 imprisonment.

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. Conn. 2015).

         On June 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. Id.

         While 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. (Pet. 2-14.)

         II. DISCUSSION

         A. ...