Andrews v. Kirby

          Sylvester Andrews, No. 46253-066 FCI Berlin P.O. Box 9000 Berlin, NH 03570 Petitioner Pro se

          Anne B. Taylor U.S. Attorney's Office 401 Market Street Camden, N.J. 08101 Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Sylvester Andrews, a prisoner presently confined at the Federal Correctional Institution at Berlin in Berlin, New Hampshire brings this action pursuant to 28 U.S.C. § 2241 to challenge his conviction and sentence.^[1] ECF No. 1. Respondent has moved to dismiss the Petition for lack of jurisdiction. ECF No. 10. For the reasons that follow, the Court will grant the Motion and dismiss the Petition without prejudice.

         BACKGROUND

         Petitioner is challenging the legality of his underlying criminal conviction from the U.S. District Court for the Eastern District of Pennsylvania and alleges that he is actually innocent, his trial counsel was ineffective, and that he should not have been classified as a career offender because burglaries are not crimes of violence. See id. & ECF No. 1-3 (memorandum of law)

         Petitioner is currently serving a 480-month sentence of imprisonment for various drug related offenses including conspiracy, possession with intent to distribute, and distribution of cocaine base, as well as possession of a firearm as a felon and possession of an unregistered firearm. No. 92-cr-671, Dkt. No. 775 (E.D. Pa.) (judgment of conviction for Counts 1, 16, 17, 18, 19, 20, and 22).^[2] On June 23, 1993, a jury convicted Petitioner of these crimes in the Eastern District of Pennsylvania. See id., Dkt. No. 589 (jury verdict).

         Petitioner's sentence was reduced in 2009 from life imprisonment to 360 months as to Counts 1, 16, 17, 19, and 22 because U.S. Sentencing Guidelines Amendment 505 reduced his base offense level to 38 and his Guidelines range from mandatory life imprisonment to a range of 360 months to life. Id., ECF No. 1238. In 2013, his thirty-year term of imprisonment for his second § 924(c) conviction, Count 20, was vacated based in part on the Government's concession that the conviction and sentence violated federal law pursuant to Bailey v. United States, 516 U.S. 137 (1995). Id., ECF No. 1288. Petitioner's application for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Guidelines Amendment 782, however, was denied. Id., ECF No. 1353.

         In 2016, Petitioner filed a successive motion pursuant to 28 U.S.C. § 2255. Id., ECF No. 1356. In that motion, he argued that his incarceration is unlawful because he is not a career offender pursuant to the Supreme Court's opinion in Johnson v. United States, 135 S.Ct. 2551 (2015). Specifically, he argued that his Pennsylvania burglary convictions did not qualify as crimes of violence. On November 1, 2017, the Third Circuit granted Petitioner leave to file the successive motion pursuant to § 2255 on the Johnson issue. See No. 92-cr-671, ECF No. 1369.

         While his application for leave to file a successive § 2255 motion was pending with the Third Circuit, Petitioner filed the instant § 2241 petition. No. 17-cv-4839, ECF No. 1. The Respondent filed a Motion to Dismiss the Petition arguing that the Court lacks jurisdiction over the Petition, because his claims may only be brought pursuant to a § 2255 motion and the Court of Appeals for the Third Circuit has granted Petitioner leave to file a successive § 2255 motion. See ECF No. 10. Petitioner filed two briefs in opposition in which he argues that he is actually innocent of the crimes for which he is incarcerated and that his Petition is properly brought pursuant to § 2241. ECF Nos. 9, 10. The Respondent did not file a reply.

         STANDARD OF REVIEW

         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. SeeHunterson 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 ...