United States District Court, S.D. West Virginia, Bluefield Division
PROPOSED FINDINGS AND RECOMMENDATION
J. Aboulhosn United States Magistrate Judge
before the Court is Petitioner's Application Under 28
U.S.C. § 2241 for Writ of Habeas Corpus by a
Person in Federal Custody. (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.
Criminal Action No. 1:08-cr-00792:
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.
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.
First Section 2255 Motion:
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.
Request for Authorization to File a Successive Section 2255
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.
Instant Section 2241 Petition:
April 11, 2014, Petitioner filed his instant Petition
requesting relief under 28 U.S.C. § 2241 and Affidavit
in Support. (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.)
Motion to Reduce Sentence:
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 ...