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Flores-Duran v. United States

United States District Court, D. New Jersey

March 25, 2019

GENARO FLORES-DURAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Genaro Flores-Duran, Petitioner pro se #54651-056

          OPINION

          JEROME B. SIMANDLE U.S. District Judge

         I. INTRODUCTION

         Genaro 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.

         II. BACKGROUND

         The 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 North Carolina:[1]

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 (2014).

         Petitioner 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 counsel.

         Flores-Duran, 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).

         Petitioner 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].

         III. ...


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