Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
Cabot v. Ormond
United States District Court, D. New Jersey
April 9, 2018
JUSTIN CABOT, Petitioner,
J. RAY ORMOND, Respondent.
SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE.
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. (Docket No. 16-3294 at ECF No. 1).
In that motion, Petitioner raised two claims: first, a claim
based on Johnson v. United States, --- U.S. ---, 135
S.Ct. 2551 (2015), and second, a claim in which he challenges
the execution of his sentence by the Bureau of Prisons (BOP)
in which he argued that the BOP had improperly credited his
sentence based on the way it treated his state and federal
sentences as consecutive to one another. (Id.).
2. Petitioner's § 2255 motion, however, was not the
first time Petitioner had raised his claim regarding the
calculation and crediting of his sentences. Petitioner had
previously raised that claim through a habeas corpus
petition, filed pursuant to 28 U.S.C. § 2241, in the
Middle District of Pennsylvania. See Cabot v.
Maiorana, No. 15-0900, 2015 WL 4160075 (M.D. Pa. July 9,
2015). The Middle District ultimately rejected that claim 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,
” and that Petitioner's sentencing credits had thus
been correctly calculated. Id. at *5.
3. On June 1, 2017, this Court entered an order and
memorandum opinion which denied Petitioner's
Johnson claim as it had been foreclosed by the
Supreme Court's ruling in Beckles v. United
States, --- U.S. ---, 137 S.Ct. 886 (2017), and denied
Petitioner a certificate of appealability as to that claim.
(Docket No. 16-3924 at ECF Nos. 3-4). In that opinion, this
Court also dismissed for lack of jurisdiction
Petitioner's sentencing calculation claim as it sought to
challenge “the execution, rather than the
validity” of Petitioner's sentence, and thus could
only properly be brought as a § 2241 petition in the
district of Petitioner's confinement - at that time the
Middle District of Pennsylvania. (Id.).
4. Almost a year later, Petitioner filed a letter with the
Court that Petitioner's requests be treated as a §
2241 habeas petition. (ECF No. 1). In his current letter
petition, Petitioner once again requests that this Court
review his claim that his sentence has been miscalculated
because his state sentence has been run consecutively to his
federal prison sentence, the same claim previously rejected
by the Middle District and dismissed for lack of jurisdiction
by this Court. (Id.). Petitioner, however, also asks
that the Court reconsider his sentence, either based on his
sentencing calculation argument or based on a decline in his
health resulting from his suffering from a disease known as
Spinal Muscular Atrophy, which is apparently “in the
Lou Ge[h]rig's disease family.” (Id. at
5. Because Petitioner has filed a purported habeas petition
with this Court, the Court is required to preliminarily
review his petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases, applicable to Section 2241 petitions
through Rule 1(b), and determine whether it “plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Pursuant to this
rule, the Court is “authorized to dismiss summarily any
habeas petition that appears legally insufficient on its
face.” McFarland v. Scott, 512 U.S. 849, 856
6. Petitioner's chief claim in his purported habeas
petition is that his sentence is being miscalculated by the
BOP based on the BOP's crediting of his state court
sentence, a challenge to the execution, rather than validity,
of Petitioner's sentence. As this Court explained to
Petitioner in dismissing a virtually identical claim in
Petitioner's previous § 2255 motion, such a claim
must be brought pursuant to 28 U.S.C. § 2241 in the
district in which Petitioner is currently confined, which now
appears to be the Eastern District of Kentucky. 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”). Because Petitioner has
already raised an effectively identical claim in the Middle
District of Pennsylvania and had that claim denied on the
merits, this Court finds that it is not in the interests of
justice to transfer this matter, and will thus dismiss
Petitioner's letter petition for lack of jurisdiction.
7. Turning to Petitioner's request for a
“reconsideration” of his sentence, Petitioner
does not appear to assert that his initial sentence was
erroneous or otherwise invalid. Petitioner, in fact, provides
no authority for a resentencing. To the extent that
Petitioner believes that he is entitled to a full
resentencing just because he thinks that he could make a
better sentencing argument now than he did at his original
sentencing, this Court is aware of no authority permitting
such a resentencing, and Petitioner's request for such a
rehearing is denied. See, e.g., United States v.
Dillon, 560 U.S. 817, 819 (2010) (a federal court
“generally may not modify a term of imprisonment once
it has been imposed”).
8. To the extent that Petitioner requests that he receive a
resentencing based on the deterioration of his heath,
however, this Court notes that a reduction in sentence based
on poor health is, in certain limited circumstances,
available through 18 U.S.C. § 3582(c)(1). Pursuant to
that statute, “the court, upon motion of the Director
of the Bureau of Prisons, may reduce the term of imprisonment
[of a petitioner] . . . if [there are] extraordinary and
compelling reasons [which] warrant such a reduction.”
It is clear from the statute that “in order for an
inmate to be even considered for . . . relief, a motion for
his sentence reduction should be filed by the Director of the
BOP after the Director approves an inmate's application
for compassionate release. Without satisfying this condition
precedent, an inmate has no basis for seeking habeas
review.” Chu v. Hollingsworth, No. 14-4598,
2014 WL 3730651, at *3 (D.N.J. July 28, 2014). Where the
Director, in his discretion, determines that compassionate
release is not warranted under § 3582(c)(1), that
decision “is simply judicially
unreviewable.” Id. (emphasis in
original). Thus, to the extent Petitioner wishes to seek
compassionate release based on his deteriorating health, he
must do so by requesting compassionate release from the BOP,
and not through filing a habeas petition in this Court.
Petitioner's attempt to secure compassionate release
relief from this Court, absent a motion from the Director of
the BOP, is thus premature, and must also be dismissed.
Id. Petitioner's purported habeas petition will
thus be dismissed in its entirety for lack of jurisdiction.
9. In conclusion, Petitioner's letter habeas petition is
DISMISSED for lack of jurisdiction. An ...
Buy This Entire Record For