Opinion
9:99-CV-336 (NAM/GLS)
September 19, 2001
FOR THE PETITIONER: KEVIN TYRONE BALDWIN, Petitioner, Pro Se, U.S. Penitentiary, White Deer, PA.
FOR THE RESPONDENT: HON. JOSEPH A. PAVONE, U.S. Attorney, OF COUNSEL: CHARLES E. ROBERTS Asst. U.S. Attorney, Syracuse, New York.
REPORT AND RECOMMENDATION
I. Introduction
Pending is a habeas corpus petition filed by Kevin Tyrone Baldwin ("Baldwin") pursuant to 28 U.S.C. § 2241(c)(3). Citing Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995), Baldwin claims that he has been impermissibly sentenced to a consecutive five year prison term as a result of his Eastern District of Virginia conviction for using a firearm during a violent crime ( 18 U.S.C. § 924(c)). He asserts that he did not actively employ the gun and is actually innocent. In a motion to dismiss, the United States argues that this court lacks jurisdiction to entertain Baldwin's petition. For the reasons that follow, the court concurs with the United States and recommends dismissal.
This matter has been referred for Report-Recommendation by the Honorable Norman A. Mordue pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
II. Procedural History
In 1990, Baldwin was convicted in Virginia of robbery, conspiracy to commit robbery and using a firearm in furtherance of the robbery. The convictions arose from a Brinks armored car heist during which two of the robbers were armed with handguns. See United States v. Baldwin, 966 F.2d 1446, 1992 WL 138345, at *1 (4th Cir. 1992). Baldwin was subsequently sentenced to 120 months imprisonment on the robbery and conspiracy convictions and a consecutive term of 60 months on the 924(c) conviction.
On direct appeal, Baldwin argued that there was no trial evidence establishing that he had employed a firearm. Baldwin, 1992 WL 138345, at *6. Finding that Baldwin had been charged as an aider and abettor under a Pinkerton theory of co-conspirator liability (see United States v. Pinkerton, 328 U.S. 640, 645-47 (1946)) and that the use of handguns during the robbery was both in furtherance of the conspiracy and reasonably foreseeable, the Fourth Circuit held that the evidence of Baldwin's use was legally sufficient to constitute active employment. Id. That conclusion was inescapable since two of the robbers actually brandished firearms, the most cogent definition of use pre or post-Bailey. Accordingly, the Fourth Circuit affirmed Baldwin's 924(c) conviction on June 22, 1992. The Supreme Court denied certiorari on February 22, 1993. Weaver et. al. v. United States, 507 U.S. 924, 113 S.Ct. 1293 (1993).
After the Supreme Court's 1995 Bailey decision, Baldwin filed a 28 U.S.C. § 2255 motion in the Eastern District of Virginia to vacate, set aside or correct his 924(c) conviction. On October 14, 1997, the district court denied the motion, asserting that the Fourth Circuit's opinion on direct appeal had clearly held that Baldwin used the firearm consistent with Pinkerton liability and consonant with the Supreme Court's definition of use in Bailey. See United States v. Baldwin, Nos. CR-90-238-A and CA-96-1642-A (E.D.Va. Oct. 14, 1997). Baldwin again appealed. The Circuit, observing that the trial evidence was sufficient to support post-Bailey use, declined to issue a certificate of appealability ("COA") and dismissed the appeal. United States v. Baldwin, 164 F.2d 625, 1998 WL 716068 (4th Cir., Oct. 13, 1998). Baldwin then petitioned the Circuit for a rehearing which was denied on December 28, 1998. See Baldwin Pet. at ¶ 6. Once again, the Supreme Court denied certiorari on April 5, 1999. Baldwin v. United States, 119 S.Ct. 1371 (Mem) (1999).
On March 5, 1999, Baldwin filed the instant habeas petition, and the government moved to dismiss on July 23, 1999.
On September 9, 1999, while his habeas petition was pending in this district, Baldwin sought leave from the Fourth Circuit to file a successive petition. On October 5, 1999, the Circuit again declined to issue a COA. See Dkt. No. 11.
III. Discussion
Baldwin's § 2241 petition is nothing more than a disingenuous attempt to evade the restrictions of 28 U.S.C. § 2255. He asks the courts in this Circuit to do what the courts in the Fourth Circuit have five times refused to do — overturn his 924(c) conviction despite the fact that it was based on legally sufficient evidence demonstrating that he actively employed firearms under a Pinkerton theory of liability. Despite Baldwin's reliance on United States v. Triestman, 124 F.3d 361 (2d Cir. 1997), this case is governed by Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001).
In Triestman, the Circuit recognized a fundamental distinction between §§ 2241 and 2255. § 2255 refers collateral attacks to the sentencing court while § 2241 confers jurisdiction on the district of confinement. Triestman, 124 F.3d at 373; see also, 28 U.S.C. § 2241(a), 2255, ¶ 1. A § 2255 motion seeking release because of an unconstitutional sentence must be brought in the court that imposed the sentence. 28 U.S.C. § 2255, ¶ 1. Furthermore, a second or successive application based upon the same claim must be dismissed, and may not be filed in the district court unless the petitioner first moves in the appropriate court of appeals for permission to file. 28 U.S.C. § 2244(a), (b)(1),(3)(A) and 2255, ¶ 8.
As a general rule, prisoners must use § 2255 to challenge an unconstitutional sentence. Jiminian, 245 F.3d at 147 (citing Triestman, 124 F.3d at 373). Of course, the Circuit recognized an exception to the general rule in Triestman, holding that a prisoner can use § 2241 when he cannot use § 2255 and when the failure to otherwise provide collateral review would raise serious constitutional questions. Triestman at 377. Because the Triestman petitioner could not meet § 2255's gate-keeping requirements for second or successive motions (see § 2255, ¶ 8 requiring newly discovered evidence or a new rule of constitutional law made retroactive by the Supreme Court) and because there had been no prior opportunity to raise the constitutional claim, the Circuit held that the failure to permit the § 2241 petition would raise serious constitutional concerns.
In Jiminian, the Circuit qualified the Triestman rule, holding that a § 2255 petition is not inadequate or ineffective simply because a prisoner cannot meet the gate-keeping requirements. Jiminian at 147. If his claim was previously available on direct appeal or in a prior § 2255 motion, he must use § 2255, not § 2241, and must comply with the § 2255 gate-keeping provisions. Id. at 147-48. There is absolutely nothing inadequate or ineffective in Baldwin's ability to test his 924(c) conviction in the Fourth Circuit. In fact, he has already done so on direct appeal, and twice done so by § 2255 motions and subsequent appeals. The fact that the Fourth Circuit has declined to permit further applications under § 2255 does not alter the reality that Baldwin has, in fact, already tested the legality of his confinement under a post-Bailey analysis of his 924(c) conviction. The jury found that as a coconspirator, he was guilty of actively employing at least two handguns used by his confederates during the course of the Brinks robbery. The Fourth Circuit affirmed that conviction, finding that there was substantial evidence to support it. Post-Bailey, Baldwin filed a § 2255 motion in the Eastern District of Virginia challenging his conviction on the same issue. The district court denied his motion and the Fourth Circuit affirmed the denial. Twice more, the Fourth Circuit declined to revisit the issue when it denied Baldwin's application for a rehearing and when it most recently declined to issue a COA. See 28 U.S.C. § 2244(b)(3)(A).
Baldwin's § 2241 petition must be construed as an application for § 2255 relief and since it must be filed in the Eastern District of Virginia, this court has no jurisdiction. There remains, however, the procedural question of what to do with the petition. In Jiminian, the Circuit instructed district courts to transfer such petitions to that Court for certification consistent with the procedures articulated in Liriano v. United States, 95 F.3d 119 (2d Cir. 1996). Jiminian at 148; see also, Tucker v. Nash, 2001 WL 761198 (E.D.N.Y. June 29, 2001). However, the facts of Jiminian are distinguishable from those in this case. Jiminian had been convicted in the Northern District of New York and his converted § 2255 petition was properly filed in this Circuit. Baldwin has intentionally sought to evade the prior Fourth Circuit rulings by improperly filing a § 2255 petition as a § 2241 petition in this district. He must return to Virginia since this court and this Circuit has no jurisdiction. See Garrett v. Menefee, 2001 WL 170678, at *2 (S.D.N.Y. Feb. 21, 2001); Dalton v. Fleming, 2001 WL 167824 (N.D.Tex. Jan. 18, 2001); Gonzalez v. United States, 150 F. Supp.2d 236, 244-45 (D. Mass. 2001). Consequently, his petition should be dismissed, not transferred. Accordingly, and for the reasons stated, it is
RECOMMENDED, that the motion of the United States to dismiss Baldwin's petition for a writ of habeas corpus (Dkt. No. 5) be GRANTED, and it is
ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).