United States District Court, D. New Jersey
Flores-Duran, Petitioner pro se #54651-056
B. SIMANDLE U.S. District Judge
Flores-Duran, a federal prisoner confined at FCI Fort Dix,
New Jersey, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 challenging his sentence
from the Eastern District of North Carolina. [Docket Entry
1]. He argues that he received ineffective assistance of
counsel during his § 2255 proceedings; his sentence
should be reduced in light of the “minor role”
retroactive amendment as held in United States v.
Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016); and that
his conviction under 18 U.S.C. § 924(c) should be
vacated under Rosemond v. United States, 572 U.S. 65
(2014). For the reasons expressed below, this Court will
dismiss the petition for lack of jurisdiction.
Court takes the following facts from the opinion dismissing
Petitioner's motion under 28 U.S.C. § 2255 filed in
the United States District Court for the Eastern District of
On August 11, 2010, deputies from the Jasper County, South
Carolina Sheriff's Office stopped petitioner for
following another vehicle too closely. A consent search of
petitioner's vehicle yielded three plastic bags which
tested positive for cocaine. On September 1, 2010, a grand
jury in the Eastern District of North Carolina indicted
petitioner and a co-defendant on one count of conspiracy to
distribute cocaine. On November 15, 2010, petitioner moved to
suppress the evidence resulting from the traffic stop,
alleging officers lacked probable cause to conduct the stop.
Following an evidentiary hearing, on February 3, 2011, United
States Magistrate Judge David Daniel recommended the district
court deny the motion to suppress. Neither party filed
objections, and this court subsequently adopted the
recommendation, denying petitioner's motion to suppress
on February 24, 2011.
On March 10, 2011, a grand jury indicted petitioner and other
co-defendants on a superseding indictment on two counts,
possession with the intent to distribute five kilograms or
more of cocaine in violation of 21 U.S.C. §§
841(a)(1) and 846 (count one), and possession of a firearm in
furtherance of a drug trafficking offense in violation of 18
U.S.C. § 924(c) (count two). Petitioner pleaded not
guilty, and proceeded to trial on June 15, 2011. On June 17,
2011, the jury unanimously convicted defendant on both
counts. The district court sentenced defendant on November
28, 2011, to 292 months on count one, and 60 months on count
two, for a total of 352 consecutive months.
Flores-Duran v. United States, No. 7:14-CV-46-FL
(E.D. N.C. Dec. 17, 2015) [Docket Entry 1-3 at 19-20].
See also United States v. Flores-Duran, No.
7:10-CR-95-FL-1 (E.D. N.C. Nov. 28, 2011). The Fourth Circuit
affirmed the conviction and sentence. United
States v. Flores-Duran, 513 Fed.Appx. 348 (4th Cir.
2013) (per curiam), cert. denied, 571 U.S. 1168
subsequently filed a motion under § 2255 in the Eastern
District of North Carolina raising four grounds for relief:
1) his sentence imposed by this court after petitioner's
conviction was improper, because it was grossly
disproportionate to the sentences imposed upon other
participants in the conspiracy; 2) the Eastern District of
North Carolina was not the appropriate venue or jurisdiction
for count two to be tried; 3) the stop of petitioner's
vehicle, the criminal case's triggering event, violated
the Fourth Amendment; and 4) ineffective assistance of
No. 7:14-CV-46-FL [Docket Entry 1-3 at 20]. The district
court denied the motion on all grounds, [id. at
27-29], and the Fourth Circuit dismissed the appeal for
failure to prosecute, United States v. Flores-Duran,
No. 16-6554 (4th Cir. appeal dismissed June 15, 2016).
now challenges his conviction under 28 U.S.C. § 2241.
[Docket Entry 1]. He raises three grounds for relief: (1)
Petitioner received ineffective assistance of counsel during
his § 2255 motion because his attorney was not licensed
to practice law in North Carolina [Docket Entry 1-4 at 4-5];
(2) the Ninth Circuit's decision in United States v.
Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), applies
retroactively to Petitioner's sentence and requires that
he be resentenced with a “minor role” reduction
[id. at 6-7]; and (3) the Supreme Court's
Rosemond decision requires that his conviction under
18 U.S.C. § 924(c) be vacated because the Government
failed to prove at trial that he had advance knowledge that a
firearm would be used in connection with the drug trafficking
crime [id. at 8-10].