Opinion
Civil No. 01-588 ADM, Criminal No. 98-179(5) ADM/AJB.
November 12, 2002
Edward Allan Willoughby, pro se.
Andrew Dunne, Esq., Assistant United States Attorney, Minneapolis, Minnesota, on behalf of Respondent United States of America.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner Edward Allan Willoughby ("Petitioner") brings the instant matter before the undersigned United States District Court Judge pursuant to his Motion "to Correct Errors in the Pre-Sentence Report pursuant to Rule 32 of the Federal Rules of Criminal Procedure" [Docket No. 564]. The underlying purpose of Petitioner's Motion is to seek modification of the 210-month sentence he is currently serving for conviction under 21 U.S.C. § 846, 841(b). Petitioner argues his Presentence Report ("PSR") was erroneous because it misrepresented the type of drug involved in Petitioner's offense, leading to an unjustifiably high base offense level and an excessive sentence. Petitioner claims there was no factual basis in the PSR for the conclusion that he possessed cocaine base (crack), and that it therefore only established that he dealt with powder cocaine. Petitioner acknowledges that he should have challenged his PSR prior to sentencing, but claims ineffective assistance of counsel, in violation of Strickland v. Washington, 466 U.S. 668 (1984), precluded him from obtaining the requisite knowledge to advance his current argument. For the foregoing reasons, the Petitioner's Motion is dismissed.
II. BACKGROUND
Petitioner, along with twelve other defendants, was indicted on July 22, 1998, on nine counts of federal narcotics trafficking violations. See Superseding Indictment [Docket No. 81]. On January 19, 1999, Petitioner entered a plea of guilty to Count 1 of the Superseding Indictment, which charged the defendants with conspiring to distribute and to possess with intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. § 846, 841(b)(1)(A). Id. The Plea Agreement contained a stipulation that "the Base Offense Level applicable in this case based upon the quantities of cocaine and cocaine base (`crack') is Level 36." Plea Agreement ¶ 4 [Docket No. 352]. The Agreement further set forth an applicable guideline range of 168 to 210 months imprisonment. Id. ¶ 9. The PSR prepared in this matter calculated an applicable guideline range of 235 to 293 months, based on Petitioner's offense level and criminal history. At sentencing, July 29, 1999, the Court imposed 210 months imprisonment, followed by five years of Supervised Release. Judgment and Statement of Reasons at 2-3 [Docket No. 432]. On August 6, 1999, Petitioner appealed this sentence to the Eighth Circuit [Docket No. 437], arguing the Court erred in its calculation of his criminal history and in failing to give him a "mitigating role" sentence reduction. The Appellate Court rejected his claims and affirmed the sentence. See United States v. Willoughby, No. 99-3148, 2000 U.S. App. LEXIS 6687, at *3 (8th Cir. Apr. 13, 2000) (unpublished opinion).
Petitioner then brought a Motion to Vacate, Set Aside or Correct the Sentence pursuant to 28 U.S.C. § 2255 [Docket No. 539], alleging a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and ineffective assistance of counsel during the sentencing phase of his case. The Court denied this Motion, as well as Petitioner's subsequent request for a Certificate of Appealability ("COA"). See Memorandum Op. and Order of June 21, 2001; Memorandum Op. and Order of September 10, 2001 [Docket Nos. 552, 558]. On January 15, 2002, the Eighth Circuit denied the COA and dismissed Petitioner's appeal [Docket No. 561]. Petitioner now challenges the length of his sentence under the guise of Rule 32 of the Federal Rules of Criminal Procedure, contending insufficient proof of the type of drug involved in the crime to which he pled guilty.
III. DISCUSSION
The legal foundation of Petitioner's Motion raises issues of jurisdiction and potential conversion to a § 2255 pleading. Petitioner seeks to bring this action "pursuant to 28 U.S.C. § 2241 [sic] and Rule 32 of the Federal Rules of Criminal Procedure." Pet'r Mot. at 2. However, neither of these grounds is sufficient in this case to invoke the jurisdiction of the Court. Based on the relief sought, Petitioner's Motion appears instead to be a second § 2255 motion and must be dealt with accordingly.
A. Rule 32 and § 2241
Rule 32 does not confer jurisdiction on the Court to hear a petitioner's post-sentencing challenge to a PSR. See, e.g., United States v. Warner, 23 F.3d 287, 290 (10th Cir. 1994); United States v. Catabran, 884 F.2d 1288, 1289 (9th Cir. 1989). Furthermore, a federal inmate may only seek relief under 28 U.S.C. § 2241 if attack on his sentence by § 2255 motion would be "inadequate or ineffective." 28 U.S.C. § 2255; United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000). "[T]he § 2255 motion is not inadequate or ineffective merely because § 2255 relief has already been denied." Lurie, 207 F.3d at 1077.
In the instant Motion, Petitioner is attempting to highlight inaccuracies in his PSR and collaterally challenge his sentence through a purported Rule 32 action. At this juncture, the Court has no jurisdiction under Federal Rule of Criminal Procedure 32 to address Petitioner's claims that the PSR misstated the type of drug involved in this offense. See Warner, 23 F.3d at 290. Petitioner additionally cites § 2241, but has made no showing that the remedy offered by § 2255 is inadequate or ineffective, and is precluded from so arguing on the ground of denial of his previous § 2255 Motion. See Lurie, 207 F.3d at 1077. Thus, without a basis of jurisdiction, the Court must determine whether to construe Petitioner's present Motion as a successive request for relief pursuant to § 2255.
B. Successive § 2255 Motion
Fundamentally, Petitioner is attacking the length of his sentence, specifically requesting the Court "re-sentence the Petitioner" and "modify the sentence" according to his allegations. Pet'r Mot. at 4; Pet'r Reply Mem. at 3. As such, it appears to be exactly the type of challenge properly submitted by a § 2255 motion to correct his sentence. See 28 U.S.C. § 2255; Lurie, 207 F.3d at 1077 (stating that a "challenge to a federal conviction . . . is most appropriately brought as a motion under 28 U.S.C. § 2255") (internal citation omitted). Here, Petitioner has already explicitly sought § 2255 relief, which was denied on the merits of his Apprendi and ineffective assistance of counsel claims. See Memorandum Op. and Order of June 21, 2001, at 3,6. In his current Motion, Petitioner again complains his PSR was in error and caused him harm, and continues to blame his counsel's ineffectiveness as responsible for his failure to make timely objections. Thus, the instant challenge, if construed as a § 2255 petition, would present a second, or successive § 2255 motion for modification of his sentence. See Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998) (articulating that a § 2255 petition is successive "if a prior § 2255 petition, raising claims regarding the same conviction or sentence, has been decided on the merits," even if the second petition asserts new grounds for relief); Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir. 1996) (finding a habeas petition to be successive when raising grounds already decided on the merits in the prisoner's initial petition). Second or successive motions pursuant to § 2255 require pre-authorization from the Court of Appeals, in the form of certification obtained under 28 U.S.C. § 2244(b)(3)(A).
The Eighth Circuit has repeatedly held that a petitioner may not circumvent this procedural requirement associated with bringing a successive § 2255 action by attempting to label the motion by another name. See United States v. Patton, No. 02-2174, 2002 U.S. App. LEXIS 22419, at *2-3 (8th Cir. Oct. 28, 2002). In the context of Federal Rule of Civil Procedure 60(b) prisoner motions, the appellate courts have treated such requests for relief as second § 2255 petitions, and addressed them accordingly. See Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002); Mathenia, 99 F.3d at 1480; see also Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997). Allowing petitioners to challenge their sentences under the pretext of various alternate remedies, would impermissibly permit "federal prisoners [to] skirt designated procedural pathways by renumbering their filings." United States ex rel Perez v. Warden, 286 F.3d 1059, 1061 (8th Cir. 2002) (referring to prisoners' attempts to file § 2241 petitions in lieu of the proper § 2255 pleadings).
Converting Petitioner's present Rule 32 claims into a successive § 2255 motion prevents circumvention of the federal habeas corpus statutes and complies with the Eighth Circuit's approach to multiple initiatives by prisoners to collaterally attack the fact or duration of their confinement. See Patton, 2002 U.S. App. LEXIS 22419, at *1; Mathenia, 99 F.3d at 1480. Certification from the Eighth Circuit is a prerequisite to filing a successive § 2255 motion with the District Court. See 28 U.S.C. § 2244(b)(3)(A); Boyd, 304 F.3d at 814. According to Boyd, when confronted with allegations best construed as a second or successive § 2255 collateral attack, though otherwise denominated, the district court is to dismiss the pleading for failure to obtain certification, or, alternatively, "transfer the purported Rule [32] motion to the Court of Appeals." Id. (referring to a purported Rule 60(b) motion). Pursuant to such instruction, the Court dismisses Petitioner's Rule 32 Motion, properly reclassified as a successive § 2255 Motion to Vacate, Set Aside or Correct his sentence, for lack of jurisdiction, based on the procedural requirement that a petitioner obtain pre-authorization from the Eighth Circuit before bringing a second such motion. 28 U.S.C. § 2244(b)(3)(A), 2255.
Such treatment of Petitioner's present pleading does not offend the rule announced in Morales v. United States, 304 F.3d 764 (8th Cir. 2002). In Morales, the Eighth Circuit held that before reclassifying a prisoner's pro se pleading as a § 2255 motion, the district court must "warn the litigant of the restrictions on second or successive motions" and "provide him an opportunity either to consent to the reclassification or to withdraw his motion." Morales, 304 F.3d at 765. The rationale underlying this requirement is the litigant's right to be informed of the adverse consequences associated with an unsuccessful § 2255 motion, namely, the restrictions barring a second such motion without pre-approval from the Court of Appeals. See id. at 765, 766; 28 U.S.C. § 2244(b)(3)(A). This line of reasoning is not applicable to Petitioner, who has already had the opportunity to bring all of his collateral challenges to his sentence in his first § 2255 Motion and is now asserting the same type of arguments without following the statutorily prescribed procedure. See 28 U.S.C. § 2244(b)(3)(A).
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion "to Correct Errors in the Pre-Sentence Report pursuant to Rule 32 of the Federal Rules of Criminal Procedure" [Docket No. 564] is reclassified as a successive 28 U.S.C. § 2255 Motion to Vacate, Set Aside, Grant a New Trial or Correct the Sentence and, according to 28 U.S.C. § 2244(b)(3)(A), 2255, is DISMISSED.