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Powell v. Schult

May 19, 2010


The opinion of the court was delivered by: Thomas J. Mcavoy Senior, United States District Judge



According to petitioner, pro se Chris Powell, on February 3, 2004, he pleaded guilty before Maine United States District Court Judge John A. Woodcock, Jr. to the charge of being a felon in possession of a firearm. See Dkt. No. 1 ("Petition") at p. 3. Subsequent to that conviction, Powell claims that a Presentence Investigation Report ("PSR") was prepared in anticipation of his federal sentence, and that in such report, it was alleged that Powell had previously been convicted of three "qualifying 'violent felonies.' " Petition at p. 3. One of those three qualifying felonies was a "Class C eluding a police officer" felony conviction. Id. ("Evading Conviction"). Powell claims that he requested that his trial counsel object to that conviction being considered a "violent felony" in the context of his sentencing, but that such counsel failed to lodge any objection to the PSR. Id. Powell claims that, as a result, he was found to be an "armed career criminal" by the District Court at his sentencing and that, as a result, he was subject to and received a mandatory minimum term of imprisonment of 180 months incarceration in light of the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA" or "the Act"). Petition at pp. 3-4. He claims that if he had not been sentenced under the ACCA, he would have only been subject to a range of imprisonment under the United States Sentencing Guidelines of between seventy-seven and ninety-six months. Id. at p. 4.

Powell declares that he filed a motion to vacate, correct or set aside his sentence pursuant to 28 U.S.C. § 2255 in the District of Maine in March, 2005, Petitionat p. 4, but that such motion was denied by that court. Id. That determination was upheld on appeal by the First Circuit Court of Appeals. Powell v. United States, 430 F.3d 490 (1st Cir. 2005), cert. denied, Powell v. United States, 547 U.S. 1047 (2006). In denying Powell's appeal, the First Circuit specifically held that "Petitioner's conviction for eluding police is a proper violent-crime predicate under the ACCA." Powell, 430 F.3d at 492.

Petitioner claims that subsequent to that decision of the First Circuit, the United States Supreme Court decided the cases of Begay v. United States, 553 U.S. 137 (2008) and Chambers v. United States, 555 U.S. ___, 129 S.Ct. 687 (2009). He claims that those cases establish that the Evading Conviction that was utilized and necessary to enhance his sentence under the ACCA cannot properly be considered a violent felony under the Act, and that because those decisions of the Supreme Court must be applied retroactively to the benefit of Powell, this Court must vacate the enhanced sentence imposed on him because he is actually innocent of violating 18 U.S.C. § 924(e). See Petition at pp. 4-6. He further claims that because a second action brought by him pursuant to 28 U.S.C. § 2255 would be inadequate or ineffective to raise the above claims, this Court may properly grant his application pursuant to 28 U.S.C. § 2241. See Memorandum of Law in Support of Petition (Attachment to Petition) ("Supporting Mem.") at pp. 7-9.

In her memorandum of law in opposition to Powell's petition, respondent argues that other federal courts that have considered similar claims brought pursuant to § 2241 have denied and dismissed such petitions for want of jurisdiction, and that Powell may only properly obtain the relief he seeks by the present application through another § 2255 motion brought in the District of Maine after first obtaining permission from the First Circuit Court of Appeals to file such motion. See generally Respondent's Memorandum of Law in Opposition to Petition (Dkt. No. 6 ("Resp. Mem.").

On September 10, 2009, Powell filed a traverse in further support of his habeas application. Dkt. No. 7 ("Traverse").


A. Differences Between 28 U.S.C. § 2241 and 28 U.S.C. § 2255

The Court first considers the significance of the fact that this action is brought by Powell pursuant to 28 U.S.C. § 2241 rather than § 2255.

It is well-settled in this Circuit that a petition filed pursuant to 28 U.S.C. § 2241 "generally challenges the execution of a federal prisoner's sentence, rather than the imposition of the sentence itself." Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001). A § 2241 petition is typically utilized to raise claims relating to an inmate's prison conditions or the computation of a prisoner's sentence. Id.; see also Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997) (discussing circumstances under which a federal prisoner may properly file a § 2241 petition). 28 U.S.C. § 2255, by contrast, is the means by which a federal inmate typically challenges his conviction and/or sentence; the text of that statute provides, in part, that § 2255 is to be utilized where the petitioner believes that "the sentence was imposed in violation of the Constitution or laws of the United States, ... or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." See Jiminian, 245 F.3d at 147 (quoting 28 U.S.C. § 2255(a)).

As noted ante, the claims asserted by Powell in the present action challenge the determination by the District of Maine that Powell was subject to the enhanced sentencing penalties provided under the ACCA; nowhere in his petition does Powell contest the conditions of his confinement or the Bureau of Prisons' calculation or execution of his sentence. See Petition. Since Powell is challenging the propriety of his sentence in light of the above-cited Supreme Court precedent, such an action is properly asserted in a motion filed pursuant to § 2255. See Brooks v. United States, No. CV 06-1728, 2007 WL 1655775, at *2 (E.D.N.Y. June 5, 2007) (" '[N]o matter what title the prisoner plasters on the [application's] cover ... [i]t is the substance that controls' and a petitioner cannot avoid the requirements of § 2255 by 'inventive captioning' ") (quoting Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004)).

Since, as noted ante, Powell has already filed an (unsuccessful) motion pursuant to § 2255 in the District of Maine, and he is now asserting claims in a § 2241 petition that are properly brought in a § 2255 motion, this Court must either treat the present petition as a second or successive § 2255 petition, and transfer it to the First Circuit for certification under § 2255(h) or, if Powell cannot demonstrate that a remedy under § 2255(e) would be inadequate or ineffective to test the legality of his detention under the "savings clause" of § 2255(e), this Court must deny and dismiss the § 2241 petition for lack of jurisdiction. See Adams v. United States, 372 F.3d 132, 136 (2d Cir. 2004). In discussing this "savings clause" of § 2255, the Second Circuit has explained that:

The net result of this statutory scheme is to limit federal jurisdiction to hear habeas claims based on the invalidity of a federal conviction or sentence to § 2255 unless a petitioner can show that a motion pursuant to that section is "inadequate or ineffective to test the legality of his detention." If such a showing can be made, federal courts retain jurisdiction to hear the habeas petition pursuant to § 2241. But if the necessary showing cannot be made, § 2241 cannot be ...

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