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Livingston v. United States

United States District Court, E.D. Virginia, Norfolk Division

January 13, 2015

DENNEVER LIVINGSTON, Petitioner,
v.
UNITED STATES of AMERICA, Respondent. Criminal Action No. 2:97cr39-41

OPINION AND ORDER

HENRY COKE MORGAN, Jr., Senior District Judge.

This motion is before the Court on Petitioner Dennever Livingston's ("Petitioner") Motion to Vacate Pursuant to 28 U.S.C. § 2241-2255(e) to Vacate a Sentence Imposed in Violation of United States v. Simmons, 226 F.3d 328 (2011), filed on February 13, 2014. Doc. 174 ("Motion"). For the reasons stated herein, the Court CONSTRUES Petitioner's Motion as one filed solely under 28 U.S.C. §2241 and TRANSFERS Petitioner's corresponding civil case to the United States District Court for the Middle District of Pennsylvania.

I. BACKGROUND

Petitioner and some forty or more other persons were involved in the bi-coastal distribution of large quantities of marijuana from 1991 to 1997. On April 11, 1997, an Indictment was filed against Petitioner, charging him with numerous counts relating to this conspiracy. Doc. 1. On November 13, 1997, a jury convicted Petitioner on fifteen charges, including conspiracy to possess with intent to distribute marijuana and various counts of money laundering. Doc. 32.

On February 20, 1998, Petitioner was sentenced to 360 months imprisonment, to be followed by ten years of supervised release. Doc. 39. Petitioner appealed to the Fourth Circuit, which affirmed in part, vacated in part, and remanded in part. Doc. 84. On re-sentencing, Petitioner received an identical sentence; however five of the counts of his original conviction were vacated. Doc. 91. Petitioner appealed again, but both his remaining convictions and sentence were affirmed. Doc. 99.

Petitioner filed his first Section 2255 Motion to Vacate on April 24, 2001, Doc. 80, but the Court immediately dismissed this petition as moot. Doc. 82. Petitioner's second Section 2255 Motion was filed on July 15, 2004. Doc. 117. The Court ordered the Government to respond, Doc. 124, which it did on April 26, 2005, Doc. 125. On September 13, 2006 the Court dismissed Petitioner's second Section 2255 Motion as time-barred. Doc. 142.

Petitioner filed the instant Motion on February 13, 2014. Doc. 174. In this Motion, Petitioner requests relief from his conviction based upon the Fourth Circuit's ruling in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).

II. LEGAL STANDARDS

A federal prisoner who seeks to challenge the validity of his conviction or sentence generally must proceed pursuant to Section 2255. Alternatively, petitions filed under Section 2241 "are reserved for challenges to the execution of the prisoner's sentence." Farrow v. Revell, 541 Fed.App'x 327, 328 (4th Cir. 2013) (citing In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997)). Rarely however, Section 2255 may be "inadequate or ineffective to test the legality of detention, " 28 U.S.C.A. § 2255(e), and a Petitioner relying on this provision, known as the Savings Clause, may file a petition for a writ of habeas corpus pursuant to Section 2241. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000).

The United States Court of Appeals for the Fourth Circuit concluded in In re Jones, that a traditional Section 2255 motion is inadequate or ineffective, and a Section 2241 petition may be used, when:

(1) at the time of conviction, settled law... established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first [Section] 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of [Section] 2255 because the new rule is not one of constitutional law.

Id. at 333-34.

III. ANALYSIS

Although styled under Section 2255, Petitioner asserts that the instant Motion should be addressed as a request pursuant to Section 2241. Petitioner argues that his case satisfies the In re Jones test and that as a result, his Motion should be heard on its merits rather than being ...


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