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Price v. Kirby

United States District Court, D. New Jersey

March 14, 2019

TARIK PRICE, Petitioner,
v.
MARK KIRBY, Respondent.

          Tarik Price, Petitioner pro se.

          Craig Carpenito, United States Attorney, Elizabeth A. Pascal, AUSA, Camden Federal Building & U.S. Courthouse, Attorneys for Respondent Mark Kirby.

          Robert A. Zauzmer, AUSA, Chief of Appeals, Anthony Wzorek, AUSA United States Attorney's Office for the Eastern District of Pennsylvania, Of Counsel.

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner Tarik Price, a federal prisoner confined at FCI Fairton, New Jersey, has filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Docket Entry 4]. Petitioner asserts he is actually innocent of his conviction under 18 U.S.C. § 924(c) for aiding and abetting the use of a firearm during a crime of violence in light of the Supreme Court's decision in Rosemond v. United States, 572 U.S. 65 (2014). As relief, Petitioner requests that his § 924(c) conviction be vacated.

         For the reasons expressed below, this Court will deny the petition.

         II. BACKGROUND

         In February 1992, Petitioner and co-conspirators robbed a Brinks armored car in front of a SEPTA office near 10th and Filbert Streets in Philadelphia, Pennsylvania. [Docket Entry 4-1 at 3]. For his role, Petitioner was convicted of conspiracy to interfere with interstate commerce by robbery, 18 U.S.C. § 1951; interfering with, aiding and abetting the interference with interstate commerce by robbery, 18 U.S.C. § 1951; and the use and carrying, and aiding and abetting the use and carrying, of a firearm during a crime of violence, 18 U.S.C. §§ 924(c)(1) and (2) after a jury trial in the United States District Court for the Eastern District of Pennsylvania. [Docket Entry 4 at 1; United States v. Tarik Price, 98-cr-00182 (E.D. Pa. Jan. 5, 1999)]. He was sentenced to a 77-month term on the § 1951 charges with a consecutive 240-month term on the § 924(c) charge. [Docket Entry 6 at 7]. The Third Circuit denied his appeal, and the Supreme Court denied a writ of certiorari. [Id. at 10].

         Petitioner filed a motion to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255 in the Eastern District of Pennsylvania on September 7, 2001. Price v. United States of America, No. 01-4606 (E.D. Pa. withdrawn Apr. 3, 2002). He filed another § 2255 motion on July 5, 2002 challenging the validity of his § 924(c) conviction. [Docket Entry 6 at 10]. The trial court denied the motion, and the Third Circuit denied a certificate of appealability on September 12, 2003. [Id.] See also Price v. United States, No. 03-1291 (3d Cir. Sept. 12, 2003].

         Petitioner filed this habeas corpus petition on July 6, 2015.[1] [Docket Entry 1]. The Court administratively terminated it as Petitioner had not paid the filing fee or submitted an in forma pauperis application. [Docket Entry 2]. The Court reopened the case after Petitioner paid the filing fee. [Docket Entry 3]. Petitioner submitted an amended petition on November 10, 2015. [Docket Entry 4]. The Court ordered Respondent to answer. [Docket Entry 5]. Warden Kirby submitted his answer and two supplemental exhibits. [Docket Entries 6, 7, 8]. Petitioner submitted his traverse. [Docket Entry 9].

         The matter is ripe for disposition without oral argument. Fed.R.Civ.P. 78(b).

         III. STANDARD OF REVIEW

         Petitioner brings this petition as a pro se litigant. The Court has an obligation to liberally construe pro se pleadings and to hold them to less stringent standards than more formal pleadings drafted by lawyers. Erickson v. Pardus,551 U.S. 89, 94 (2007); Higgs v. Attorney Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), as amended (Sept. 19, 2011) (citing Estelle v. Gamble,429 U.S. 97, 106 (1976)). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn,151 F.3d 116, 118 (3d Cir. 1998); Lewis ...


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