Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davender v. Kirby

United States District Court, D. New Jersey

July 5, 2018

TODD DAVENDER, Petitioner
v.
WARDEN MARK KIRBY, Respondent.

          Todd Davender, Federal Correctional Institution - Berlin Petitioner Pro Se.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This matter comes before the Court upon Petitioner's Motion for Reconsideration of this Court's Opinion and Order dismissing his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. See ECF No. 9. For the reasons explained below, the Court will deny reconsideration.

         BACKGROUND

         Petitioner is presently incarcerated at the Federal Correctional Institution at Berlin, [1] based on his prior conviction in the United States District Court for the District of Connecticut of one count of conspiracy to possess with intent to distribute fifty grams or more of cocaine, one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine, and two counts of conspiracy to possess with intent to distribute five hundred grams or more of cocaine. See ECF No. 5. The District of Connecticut summarized the facts of the 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 [pursuant to 28 U.S.C. § 2255] 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. United States, No. 11-cv-568, 2012 WL 6649588, at *1 (D. Conn. Dec. 19, 2012). Subsequently, Petitioner filed another motion to modify pursuant to 18 U.S.C. § 3582(c)(2), this time based on the 782 Amendment to the United States Sentencing Guidelines. See ECF No. 1. This motion was granted, and his sentence was further reduced to 262 months. United States v. Davender, No. 00-cr-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 Court of Appeals for the Second Circuit. Davender v. United States, No. 16-2109 (2d Cir. 2016). The Second Circuit denied his request. Id. Petitioner filed another request to file a second or successive petition, raising various claims, including one based on Mathis v. United States, 136 S.Ct. 2243 (2016). Davender v. United States, No. 17-599. The Second Circuit again denied the request. Id.

         While the request to file a second or successive § 2255 petition was pending before the Second Circuit, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. See ECF No. 1. In it, he argued that: (1) his counsel was ineffective for failing to argue that his § 851 enhancement no longer applied in light of Alleyne v. United States, 133 S.Ct. 2151 (2013); (2) the prior conviction used to enhance his sentence under § 851 no longer qualified on account of Mathis and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) (holding that defendant's prior state-level conviction for the delivery of heroin did not qualify as a controlled substance offense under the federal career offender enhancement); (3) the trial court abused its discretion by failing to conduct the “multi factor analysis” in lieu of Petitioner's objection to the use of a prior failure to appear conviction in sentencing; and (4) Petitioner's prior conviction for violation of N.Y. Penal Law § 220.16 was foreclosed for the purpose of enhancement in light of Mathis. See ECF No. 1.

         This Court dismissed the Petition by Opinion and Order entered January 5, 2018, because the Court lacked jurisdiction over the Petition. See ECF Nos. 5 (Opinion), 6 (Order). In so concluding, the Court relied on the decision of In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997) (stating that a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 has been the “usual avenue for federal prisoners seeking to challenge the legality of their confinement), and case law from other Court of Appeals for the Third Circuit decisions construing the Dorsainvil exception narrowly.

         In Dorsainvil, the Third Circuit interpreted the statutory language such that a § 2255 motion must be used to raise a challenge to the validity of a sentence, unless that section is “inadequate or ineffective, ” permitting resort to § 2241. See Dorsainvil, 119 F.3d at 251. A § 2255 motion is “inadequate or ineffective” where a prisoner who previously filed at § 2255 motion on other grounds “had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate.” Id. The Third Circuit emphasized, however, that it would not consider § 2255 “inadequate or ineffective” merely because ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.