United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
Eddie Pressley brings this pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241
("Petition"). (Pet. (Dkt. 1).) Petitioner
challenges his federal conviction, asserting that he is
actually innocent of carrying a firearm in violation of 18
U.S.C. § 924(c). For the reasons set for below, the
court construes the Petition as a successive 28 U.S.C. §
2255 motion. The court therefore transfers the Petition to
the Second Circuit Court of Appeals for certification.
January 31, 2005, Petitioner entered a guilty plea to: (i)
one count of conspiracy to distribute crack cocaine and
heroin, in violation of 21 U.S.C. §§ 841(a) and 846
("Count One"); and (ii) one count of using and
carrying a firearm during and in relation to the drug
trafficking crime charges in Count One, in violation of 18
U.S.C. § 924(c) ("Count Twenty-Two").
(See Min. Entry, dated Jan. 31, 2005 (Crim. Dkt.
322); Superseding Indictment (Crim. Dkt. 223).)
The court sentenced Petitioner to 292 months'
imprisonment on Count One and a mandatory 60-month
consecutive term of imprisonment on Count Twenty-Two,
resulting in a total sentence of 352 months'
imprisonment. (J. (Crim. Dkt. 363).) Petitioner appealed his
conviction to the Second Circuit, which affirmed on November
14, 2006. United States v. Presslev, 469 F.3d 63, 64
(2d Cir. 2006), cert, denied. 549 U.S. 1297 (2007).
February 13, 2008, Petitioner filed his first petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2255,
challenging the legality of his sentence. (Mot. to Vacate
Sent. (Habeas I Dkt. I).) The court denied the petition. (Order
(Habeas I Dkt. 10).) On June 11, 2012, Petitioner filed
another § 2255 petition, again challenging the legality
of his sentence. (Mot. to Vacate Sent. (Habeas II Dkt.
Because this was a successive § 2255 petition, the court
transferred the petition to the Second Circuit pursuant to 28
U.S.C. § 1631. (Mem. & Order (Habeas II Dkt. 3).)
The Second Circuit denied leave to file a successive
petition. (Mandate (Habeas II Dkt. 7).)
The Instant Habeas Petition
March 15, 2012, Petitioner filed the instant petition
pursuant to 28 U.S.C. § 2241. (Pet.) Petitioner alleges
that, under Bailey v. United States, 516 U.S. 137
(1995), he is "actually innocent" of the firearms
possession charge to which he entered a guilty plea, and that
he pleaded guilty due to "bad lawyering." (Pet. at
1, 5.) Bailey held that the word "use" in
§ 924 "must connote more than mere possession of a
firearm by a person who commits a drug offense, " 560
U.S. at 143; instead, a defendant must have "actively
employed" a firearm to be convicted of using a firearm,
Id. at 147. Because Petitioner's co-defendants
merely "possessed" weapons and did not
"actively employ" them during the drug
trafficking offense, Petitioner argues that his sentence is
illegal under Bailey. (Pet. at 9.) Petitioner did
not raise this claim on direct appeal or in his first §
court finds that the Petition is properly construed as a
§ 2255 motion rather than a § 2241 motion. Because
this is Petitioner's third § 2255 motion, the court
transfers the Petition to the Second Circuit for
certification. See Jiminian v. Nash, 245 F.3d 144,
147 (2d Cir. 2001).
made pursuant to Sections 2255 and 2241 "address
different types of claims." Chambers v. United
States. 106 F.3d 472, 475 (2d Cir. 1997). Whereas §
2241 motions challenge the execution of a sentence,
§ 2255 addresses the imposition of that
sentence, including the underlying conviction.
Jiminian, 245 F.3d at 146-47.
amended by the Antiterrorism and Effective Death Penalty Act
("AEDPA), § 2255 provides that "a second or
successive petition is justiciable only if it is based on
'newly discovered evidence' or a 'new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court.'" Triestman v.
United States, 124 F.3d 361, 373 (2d Cir. 1997) (citing
§ 2255(h)). Pursuant to this "gatekeeping
mechanism, " Courts of Appeals must decide in the first
instance whether a successive habeas petition can proceed.
Herrera-Gomez v. United States. 755 F.3d 142, 145
(2d Cir. 2014) (per curiam).
a general rule, federal prisoners must use § 2255
instead of § 2241  to challenge a sentence as
violating the Constitution of laws of the United
States"; however, where § 2255 "provides an
inadequate or ineffective remedy, " a prisoner may file
a § 2241 motion challenging the imposition of their
sentence. Jiminian, 245 F.3d at 147. A remedy is
"inadequate or ineffective in circumstances in which the
petitioner cannot, for whatever reason, utilize § 2255,
and in which the failure to allow for collateral review would
raise serious constitutional questions." Id.
(internal quotation marks and citation omitted).
"Serious constitutional questions would arise if a
person who can prove his actual innocence on the existing
record-and who could not have effectively raised his claim of
innocence at an earlier time-had no access to judicial
review." Triestman, 124 F.3d at 363. Of note,
§ 2255 "is not ineffective or inadequate ... simply
because a ...