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Habeck v. United States

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

February 8, 2018

HAROLD A. HABECK, II, #80545-083, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ROBERT J. KRASK UNITED STATES MAGISTRATE JUDGE

         This matter was brought by petition for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. It was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia.

         The undersigned recommends that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.

         I. STATEMENT OF THE CASE

         A. Background

         Petitioner, Harold A. Habeck II ("Habeck"), is a federal prisoner convicted and sentenced in the Richmond Division of the United States District Court for the Eastern District of Virginia. No. 3:12cr75, ECF No. 48. On May 1, 2012, a federal grand jury indicted Habeck on charges of possession with intent to distribute 100 or more marijuana plants (count one), in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(B), and possession of multiple firearms in furtherance of a drug-trafficking crime (count two), in violation of Title 18, United States Code, Section 924(c). No. 3:12cr75, ECF No. 1. On July 24, 2012, Habeck entered a guilty plea to the narcotics charge in count one and, in a written statement of facts filed in support of the guilty plea, admitted that he knowingly and unlawfully possessed, among other things, 397 marijuana plants and marijuana packaged for distribution. No. 3:12cr75, ECF Nos. 15, 18.

         Habeck exercised his right to go to trial on the firearms charge. No. 3:12cr75, ECF Nos. 30-34. Before trial, Habeck waived indictment and consented to the filing of a criminal information that substituted a slightly revised firearms charge alleging that Habeck possessed one or more of three firearms in furtherance of a drug-trafficking crime, in violation of Title 18, United States Code, Section 924(c). No. 3:12cr75, ECF No. 31, ECF No. 65 at 27 (discussing that the criminal information was filed to correct an error in count two of the indictment, which was later dismissed). At the conclusion of the trial held before U.S. District Judge John A. Gibney, Jr., a jury found Habeck guilty of the firearms charge on August 2, 2012. No. 3:12cr75, ECF No. 34.

         The Court sentenced Habeck on October 24, 2012 and entered judgment on his convictions the next day. No. 3;l2cr75, ECF No. 48. In recognition of the fact that both statutes of conviction called for mandatory minimum terms of imprisonment, [1] the Court sentenced Habeck to serve 60 months on count one of the indictment and to a consecutive 60-month term on count one of the criminal information, for a total sentence of imprisonment of 120 months. Id. at 1-2.

         On November 7, 2012, Habeck noted an appeal. No. 3:12cr75, ECF No. 50. On June 24, 2013, the United States Court of Appeals for the Fourth Circuit rejected Habeck's challenges to the sufficiency of the evidence and to the trial court's jury instructions for the firearms charge. United States v. Habeck, 530 Fed.Appx. 241 (4th Cir. 2013). After the appellate court's mandate issued on July 16, 2013, No. 3;l2cr75, ECF No. 64, and prior to the filing of the now pending section 2241 petition, Habeck presented no other filings seeking to further appeal or collaterally attack his conviction or sentence.

         On May 11, 2017, petitioner filed a petition pursuant to 28 U.S.C. § 2241 in this Court.[2]ECF No. 1. By response dated November 28, 2017, the United States requested dismissal of the petition. ECF No. 9. Habeck filed a reply on December 14, 2017. ECF No. 10. The matter is now ripe for decision.

         B. Ground Alleged

         Habeck alleges that the trial court's belief that it lacked authority to sentence him to less than 60 months for his narcotics conviction gave rise to a miscarriage of justice and, pursuant to the Supreme Court's recent decision in Dean v. United States, 137 S.Ct. 1170 (2017), he is entitled to be resentenced. ECF No. 1 at 6. Specifically, Habeck seeks issuance of a court order sentencing him to 30 months on the narcotics conviction, followed by a consecutive, 60-month sentence for the firearms conviction. Id. Habeck seeks to pursue this section 2241 claim pursuant to the "savings clause" of Title 28, United States Code, Section 2255(e). Id. at 1.

         II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         Habeck's petition challenges the lawfulness of the sentence imposed, rather than its execution. The proper mechanism for raising such a challenge is a motion pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255(a); In re Vial,115 F.3d 1192, 1194 (4th Cir. 1997) ("Those convicted in federal court are required to bring collateral attacks challenging the validity of their judgment and sentence by filing a motion to vacate sentence pursuant to [section] 2255."); Triestman v. United States,124 F.3d 361, 373 (2d Cir. 1997); Bradsh ...


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