United States District Court, E.D. Virginia, Alexandria Division
Anthony E. Vazquez, Petitioner,
J. Ray Ormond, Respondent.
MEMORANDUM OPINION AND ORDER
M. Brinkema United States District Judge
E. Vazquez, (Vazquez or petitioner),  a federal inmate proceeding
pro se, has filed a petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2241, challenging the
"validity of [his] conviction or sentence as
imposed" by the United States District Court for the
Eastern District of Pennsylvania. Petitioner's previous
collateral challenge to his sentence in the United States
District Court for the Eastern District of Pennsylvania was
dismissed, and his appeals to the United States Court of
Appeals for the Third Circuit and the United States Supreme
Court were unsuccessful. See Pet. at 2-3. Petitioner argues
that he may collaterally attack his conviction and sentence
in a § 2241 petition because relief under § 2255 is
inadequate or ineffective to test the legality of his
detention. See In re Jones. 226 F.3d 328, 333 (4th
Cir. 2000). Petitioner has submitted the filing fee required
by 28 U.S.C. § 1914(a). For the reasons that follow, the
petition must be construed as an unauthorized effort to file
a successive motion to vacate pursuant to 28 U.S.C. §
2255. For this reason, it will be dismissed without
states that he is presently incarcerated in this district
pursuant to a conviction entered in the United States
District Court for the Eastern District of Pennsylvania, as a
result of his pleading guilty on March 24, 2008, to being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). See United States v. Vazquez. No.
2:07-cr-00423-JS-1 (E.D. Pa. July 24, 2007). Because his
criminal history qualified him for "enhanced
penalties" under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), on November 25,
2008, petitioner received a sentencing enhancement that
"raised his sentencing exposure from zero to ten years
imprisonment to fifteen years to life imprisonment, "
and he was sentenced to 198 months imprisonment. Dkt. No. 1-4
admits that the United States Court of Appeals for the Third
Circuit affirmed his conviction and sentence on May 25, 2010,
United States v. Vazquez, No. 08-4696, 381 Fed.Appx.
168 (3d Cir. May 25, 2010), the United States Supreme Court
denied certiorari review on February 22, 2011, Vazquez v.
United States. No. 10-6117, 562 U.S. 1222 (2011), and
that his timely motion to vacate, pursuant to 28 U.S.C.
§ 2255, was dismissed on February 7, 2013.
January 30, 2018, petitioner filed the instant petition
alleging that his "December 12, 2001 conviction for
Possessing with Intent to Deliver a 'Controlled
Substance' (CP # 0007 1123 1/1)" may no longer be
considered a "serious drug offense" that can be
used to enhance his sentence under the ACCA. Dkt. No. 1-4 at
4. Specifically, petitioner argues that under the
"modified categorical approach" advanced in
Descamps v. United States. 133 S.Ct. 2276, 2281-85
(2013), and further clarified to require that any alternative
elements of a crime increasing a defendant's exposure be
proven beyond a reasonable doubt, his "December 12, 2001
conviction for Possessing with Intent to Deliver a
'Controlled Substance' (CP # 0007 1123 1/1)" may
no longer be considered a "serious drug offense"
that can be used to enhance his sentence under the ACCA. Dkt.
No. 1-4 at 4.
contends that the "savings clause" of 28 U.S.C.
§ 2255(e) applies to his conviction and he should be
permitted to file his action under 28 U.S.C. § 2241.
Specifically, he argues that "from 2006 to 2014 the
Third Circuit consistently held that Pennsylvania's drug
Statute was only divisible by conduct, not by drug type,
" but after his direct appeal and section 2255 motion,
"the Third Circuit reassessed the Pennsylvania statute
underlying [his] previous convictions" and
"determined that the statute was also divisible by drug
type." Dkt. No. 1-4 at 6-7. According to petitioner, a
prior state conviction may be used to enhance a sentence
under the ACCA only "if it involves a controlled
substance 'as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)' and 'for which a
maximum term of imprisonment often years or more is
prescribed by law.'" Dkt. No. 1 -4 at 9. Based on
the foregoing, petitioner argues that "his prior
convictions are no longer valid ACCA predicates ... because
Pennsylvania's 'delivery' element encompasses a
broader range of conduct than the ACCA's
'distribution' element." Dkt. No. 1 -4 at 9. In
petitioner's view, if the sentencing court had
"applied the modified categorical approach, it would
have been unable to use Mr. Vazquez's 2001 conviction as
an ACCA predicate because there are no ... records specifying
the drug upon which his conviction rests." Dkt. No. 1-4
motion pursuant to 28 U.S.C. § 2255 provides the primary
means of collateral attack on a federal conviction and
sentence. Rice v. Rivera, 617 F.3d 802, 807 (4th
Cir. 2010) ("[I]t is well established that defendants
convicted in federal court are obliged to seek habeas relief
from their convictions and sentences through §
2255."); however, the Antiterrorism and Effective Death
Penalty Act of 1996 restricted the jurisdiction of district
courts to hear second or successive applications for §
2255 federal habeas corpus relief by establishing a
"gatekeeping mechanism." Felker v. Turpin.
518 U.S. 651, 657 (1996). Thus, "[b]efore a second or
successive application permitted by this section is filed in
the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application." 28 U.S.C.
federal inmate may proceed under 28 U.S.C. § 2241
instead of § 2255 only if the inmate demonstrates that
the remedy afforded by § 2255 "is inadequate or
ineffective to test the legality of his detention." 28
U.S.C. § 2255(e). For instance, "attacks on the
execution of a sentence are properly raised in a § 2241
petition." In re Vial, 115 F.3d 1192, 1194 n.5
(4th Cir. 1997). The § 2255(e) exception is narrow; a
federal inmate may proceed under § 2241 to challenge his
conviction or sentence "in only very limited
circumstances." United States v. Poole. 531
F.3d 263, 369 (4th Cir. 2008). Indeed, the Fourth Circuit has
emphasized that "the remedy afforded by § 2255 is
not rendered inadequate or ineffective merely because an
individual has been unable to obtain relief under that
provision, or because an individual is procedurally barred
from filing a § 2255 motion." Id.
Fourth Circuit uses a conjunctive, three-part test to
determine when "§ 2255 is inadequate and
ineffective" such that § 2241 may be utilized
instead. In re Jones. 226 F.3d 328, 333 (4th Cir.
2000). Specifically, a petitioner may use § 2241 in lieu
of § 2255 if:
(1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first
§ 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 § 2255 because the new rule is
not one of constitutional law.
Id. The Fourth Circuit formulated this test
expressly to provide a remedy for the "fundamental
defect presented by a situation in which an individual is
incarcerated for conduct that is not criminal but, through no
fault of his own, he has no source of redress."
Id. at 333 n.3.
simply, petitioner's claim is not cognizable under §
2241 because petitioner cannot satisfy the ...