Opinion
Civil Action 21-1521
11-28-2022
JELANI SOLOMON, Petitioner, v. WARDEN TRATE, F.C.I. MCKEAN, Respondent.
District Judge Cathy Bissoon
REPORT AND RECOMMENDATION RE: ECF NOS. 4 AND 24
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion Seeking Emergency Injunction (the “Injunction Motion”), ECF No. 24 be denied. It is further recommended that this Court dismiss the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (the “Petition”), ECF No. 4, pursuant to the so-called Concurrent Sentence Doctrine.
II. REPORT
Petitioner Jelani Solomon (“Petitioner”) is a federal prisoner currently incarcerated at the Federal Correctional Institution at McKean (“FCI-McKean”) in Lewis Run, Pennsylvania. Petitioner initiated this federal habeas proceeding by submitting the Petition, which was received by this Court on October 25, 2021. ECF No. 1. Upon payment of the filing fee, the Petition and supporting brief were filed on the docket on November 17, 2021. ECF Nos. 4 and 7.
In the Petition, Petitioner attacks his conviction at Count 3 s of the superseding indictment in United States v. Solomon, No. 05-CR-385, of use of carrying and using a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). ECF No. 4 at 6. See also Superseding Redacted Indictment, United States v. Solomon, No. 05-CR-385 (W.D. Pa. Mar. 28, 2006), ECF No. 25 at 3.
Petitioner was found guilty of Count 3s - as well as counts Is, 2s, 4s, 6s, and 7s of the superseding indictment - by a jury on October 23, 2007. Redacted Jury Verdict, United States v. Solomon, No. 05-CR-385 (W.D. Pa. Oct. 23, 2007), ECF No. 665.
On June 18, 2008, Petitioner was sentenced to serve: a term of life imprisonment at Count Is; life without the possibility of release at count 6s; 60 months' imprisonment at Count 2s; 120 months' imprisonment at Count 3s: 120 months' imprisonment at Count 4s: and 240 months' imprisonment at Count 7s. The sentence at Count 3s was ordered to be served consecutively to the life term at Count 6s; all other terms were to be concurrent with the life term at Count 6s. United States v. Solomon, No. 05-CR-385 (W. D. Pa. June 18, 2007), ECF No. 780.
Petitioner has unsuccessfully attempted to collaterally attack his conviction and sentence for various of the above Counts on at least three prior occasions. See United States v. Solomon, No. 05-CR-385 (W.D. Pa.) ECF Nos. 839, 896, 913, and 915; Solomon v. Warden Lewisburg USP, 764 F App'x 140,141 (3d Cir. 2019).
The basis for Petitioner's current collateral attack of his conviction at Count 3s is his assertion that he is actually innocent of the crime enumerated at 18 U.S.C. § 924(c)(1)(A) based on the construction of the statute set forth in Watson v. United States, 552 U.S. 74 (2007), and Holland v. Warden Canaan USP, (3d Cir. 2021). ECF No. 4 at 8.
On February 16,2022, Respondent filed a Response in opposition to the Petition, generally arguing that this Court lacked jurisdiction because the Petition did not satisfy the saving clause of 28 U.S.C. § 2255(e); that this Court should decline to grant relief pursuant to the so-called Concurrent Sentence Doctrine; and that Petitioner actually is guilty of violating Section 924(c)(1)(A) and was properly convicted. ECF No. 20 at9 and 13-16. Petitioner timely submitted a Traverse on May 10, 2022. ECF No. 31.
In the interim, Petitioner filed the Injunction Motion on April 4, 2022. ECF No. 24. In the same, he seeks a stay and emergency injunction requiring Respondents to return legal materials -at least some of which is related to the instant federal habeas proceeding - and related property that had been confiscated on March 18, 2022. Id. at 1-2. The undersigned ordered a response, ECF No. 25, in which Respondent stated that the Bureau of Prisons had returned Petitioner's legal materials to him on April 7, 2022. ECF No. 26 at 1.
Pursuant to this Court's text Order dated April 12, 2022, Petitioner filed a Notice in which he disputed that his legal property had been returned on April 7, and asserted that it not been returned as of April 20,2022. ECF No. 28 at 1-2. In the margin, Plaintiff added a list of additional property that had been taken and not returned as well. Id. at 1.
This Court ordered Respondent to file a sur-reply, which was filed on May 10, 2022. ECF Nos. 29 and 30. Respondent correctly noted that it was unclear what, if any, of the legal material related to this case still was missing. ECF No. 30 at 2. That said, the bulk of Respondent's sur-reply focused on the BOP's administrative grievance process and did not squarely address Petitioner's allegations to the extent that they were related to the present federal habeas proceedings. ECF No. 30.
On May 27, 2022, Petitioner submitted his own response to Respondent's sur-reply, in which he stated, inter alia, that “sentencing transcripts legal notes, [and] down loaded case law” related to this case still were missing as of May 20, 2022. ECF No. 32 at 2-3. In the margin, he indicated that prison staff stated that they would help Petitioner find his missing property or reimburse him, neither of which had come to pass as of that date. Id. at 2.
Both the Injunction Motion and the Petition are ripe for consideration. It is noteworthy to the disposition of both of these filings that Petitioner attacks only his conviction at Count 3s m the Petition. His sentence of 120 months' imprisonment at Count 3s is consecutive to two concurrent life sentences at Counts Is and 6s - the latter of which is without the possibility of release. United States v. Solomon, No. O5-CR-385 (W.D. Pa. June 18, 2007), ECF No. 780. He does not attack either of those life sentences in the Petition.
A. The Injunction Motion Should be Denied.
“[T]he grant of injunctive relief is an ‘extraordinary remedy which should be granted only in limited circumstances.'” AT&T v. Winback & Conserve Program, Inc,, 42 F.3d 1421, 1426-27 (3d Cir. 1994) (quoting Frank's GMC Truck Center, Inc, v. General Motors Corp,, 847 F.2d 100, 102 (3d Cir. 1988)). A party seeking a preliminary injunction must show: “(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Ball v. Beard, 396 Fed.Appx. 826, 827 (3d Cir. 2010) (quoting Kos Pharm.. Inc, v. Andrx Corp, 369 F.3d 700, 708 (3d Cir. 2004)). “In order to support a preliminary injunction, plaintiff must show both a likelihood of success on the merits and a probability of irreparable harm.” Id., at 90-91.
If true, the allegations regarding the confiscation of Petitioner's legal materials related to this case - and the short shrift that he received in Respondent's briefing - are cause for concern. However, Petitioner cannot show a likelihood of success on the merits. Specifically, and for the reasons stated herein at Part II.B, infra, the Petition should be dismissed pursuant to the Concurrent Sentence Doctrine. Moreover, no amount of allegedly missing legal materials can cure this issue. Accordingly, the Injunction Motion, ECF No. 24, should be denied.
B. The Petition Should he Dismissed.
Because Petitioner attacks only his 120 month sentence at Count 3 s, and does not challenge his two life sentences at Counts Is and 6s that are consecutive to the same, this Court should decline to extend jurisdiction under the so-called Concurrent Sentence Doctrine, and dismiss the Petition.
As explained by the United States Court of Appeals for the Third Circuit earlier this year:
The concurrent sentence doctrine allows a court the “discretion to avoid resolution of legal issues affecting less than all of the counts in an indictment where at least one count will survive and the sentences on all counts are concurrent.” The concept underlying this doctrine is simple: there is no use expending the limited resources of the litigants and the judiciary reviewing a conviction where, regardless of the outcome, the defendant will remain subject to the same sentence. This common-sense approach preserves valuable and limited judicial resources for deciding those cases which might actually result in practical changes for the litigants.Duka v. United States, 27 F.4th 189,194 (3d Cir. 2022) (internal citations and quotes omitted).
Moreover, despite its name, the Third Circuit has recognized explicitly that it is not abuse of discretion to apply the Concurrent Sentence Doctrine to a sentence that is consecutive to an unchallenged life sentence. Id. at 194-95. This is because “[a]t bottom, [Petitioner's] request for the trial court to vacate [his sentence] will result in the expenditure of the court and parties time and resources, with no possibility for any cognizable change for the [Petitioner], even if [his] challenge proved successful.” Id. at 195. Thus, the fact that the sentence of 120 months at Count 3s is consecutive to the life sentences at Counts Is and 6s does not save Petitioner's claim.
Because even a finding in Petitioner's favor would not affect the ultimate length of his incarceration, this Court should decline to extend jurisdiction over his claim pursuant to the Concurrent Sentence Doctrine, and dismiss the Petition, ECF No. 6.
C. No Certificate of Appealability is Required.
A certificate of appealability is not required for federal prisoners seeking relief under Section 2241. Muza v. Werlinger. 415 Fed.Appx. 355, 357 n.l (3d Cir. 2011). Therefore, it is not necessary to determine whether one should be issued here.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion Seeking Emergency Injunction, ECF No. 24, be denied. It is further recommended that this Court dismiss the Petition, ECF No. 4, under the Concurrent Sentence Doctrine.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Hon. Cathy Bissoon, United States District Judge