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Carranza v. Masters

United States District Court, S.D. West Virginia, Bluefield Division

March 2, 2017

VICTOR CARRANZA, Petitioner,
v.
BART MASTERS, Warden, et al., Respondents.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge

         Pending before the Court is Petitioner's Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody.[1] (Document No. 1.) By Standing Order, this matter was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 2.) By Order entered on January 6, 2016, the above case was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for deposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 8.) Having examined Petitioner's Section 2241 Application, the undersigned finds, and hereby respectfully recommends, that Petitioner's Application be dismissed.

         FACT AND PROCEDURE

         A. Criminal Action No. 1:08-cr-00792:

         On July 8, 2009, Petitioner was convicted in the Southern District of New York of one count of Conspiracy to Distribute and Possess with Intent to Distribute Cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) and (b)(1)(A) (Count One). United States v. Carranza, Case No. 1:08-cr-00792 (S.D.N.Y. Nov. 23, 2009), Document No. 44. On November 23, 2009, the District Court sentenced Petitioner to a 151-month term of imprisonment to be followed by a five-year term of supervised release. Id., Document No. 59.

         Petitioner filed his Notice of Appeal on November 29, 2009. Id., Document No. 60. Petitioner failed to perfect his appeal by filing a brief and the Second Circuit dismissed his appeal on December 21, 2010. Id., Document No. 81.

         B. First Section 2255 Motion:

         On April 26, 2010, Petitioner filed in the Southern District of New York a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. Carranza v. United States, Civil Action No. 1:10-03456 (S.D.N.Y. April 7, 2011), Document No. 1. In his Motion, Petitioner argued that trial counsel was ineffective based upon the following: (1) Failing to object to the Presentence Investigation Report's inclusion of a reference to information obtained by the Probation Department from law enforcement agents in Arizona that Petitioner was suspected of being a member of a particular drug cartel; and (2) Failing to object to the mandatory minimum applicable to his offense. Id. By Memorandum Opinion and Order filed on April 7, 2011, the District Court denied Petitioner's Section 2255 Motion on the merits. Id., Document No. 5.

         C. Request for Authorization to File a Successive Section 2255 Motion:

         On February 21, 2012, Petitioner filed with the Second Circuit a “Motion for Authorization to File a Successive Motion Under 28 U.S.C. § 2255” pursuant to 28 U.S.C. § 2244. Carranza v. United States, Case No. 12-334 (2nd Cir.). In support, Petitioner asserted the following: (1) Counsel was ineffective for failing to timely file an appellate brief and appendix, which resulted in the dismissal of Petitioner's direct appeal; and (2) Petitioner “has been denied proper ‘access to the courts, ' due to his attorney's ineffectiveness. Id. The Second Circuit determined that “although Carranza's first § 2255 motion challenging the legality of his 2009 conviction and sentence was previously denied on the merits, his proposed § 2255 is not ‘second or successive' under 28 U.S.C. § 2255(h) because it seeks only to reinstate his direct-appeal rights and therefore does not challenge the legality of the sentence imposed.” By Per Curiam Opinion and Mandate entered on July 21, 2015, the Second Circuit denied Petitioner's successive motion “as unnecessary” and transferred the matter to the District Court with instructions that Carranza's § 2255 be accepted for filing. Carranza, Civil Action No. 1:10-03456, Document No. 7.

         D. Instant Section 2241 Petition:

         On April 11, 2014, Petitioner filed his instant Petition requesting relief under 28 U.S.C. § 2241 and Affidavit in Support.[2] (Civil Action No. 1:14-14446, Document Nos. 1 and 1-1.) Petitioner alleges that he is “actually innocence of USSG and statutory enhancements not presented in the Indictment and not found or proven beyond a reasonable doubt.” (Id., Document No. 1, p. 2.) Specifically, Petitioner claims that the sentencing court improperly applied a 3-level Guideline enhancement based upon the Court's finding that Petitioner was a “leader and/or organizer.” (Id., p. 7.) Petitioner complains that his Indictment was not amended to include the “leader and/or organizer charge” nor was it proven beyond a reasonable doubt to the jury. (Id.) Finally, Petitioner contends that he is actually innocent of being a “leader and/or organizer.” (Id.) As relief, Petitioner requests that this Court reverse his sentence and resentence Petitioner without the 3-level Guideline enhancement for being a leader and/or organizer. (Id., p. 8.)

         E. Motion to Reduce Sentence:

         Based on the retroactive application of the November 1, 2014, amendments to the United States Sentencing Guidelines, the Southern District of New York considered Petitioner sua sponte for reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). By “Order Regarding Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2)” entered on April 21, 2015, the District Court reduced Petitioner's ...


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