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Pham v. Saad

United States District Court, N.D. West Virginia

November 1, 2017

THUAN M. PHAM, Petitioner,
v.
JENNIFER SAAD, Warden, Respondent.

          AMENDED REPORT AND RECOMMENDATION [1]

          JAMES E. SEIBERT, U.S. MAGISTRATE JUDGE.

         I. INTRODUCTION

         On November 18, 2016, pro se Petitioner, Thuan M. Pham (“Petitioner”), filed an Application for Habeas Corpus pursuant to 28 U.S.C. § 2241. Thereafter, Petitioner was granted leave to amend his petition. Petitioner, who is a federal inmate housed at FCII Hazelton, is challenging the validity of his sentence imposed in the United States District Court for the Northern District of Texas. This matter is pending before the undersigned for an initial review and Report and Recommendation pursuant to LR PL P 2.

         II. PROCEDURAL HISTORY[2]

         On June 3, 2005, Petitioner pleaded guilty to one count of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a) and (b)(1)(C), and one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1)(C) and 18 U.S.C. § 2. On September 27, 2005, the district court sentenced Petitioner to 188 months of imprisonment and a three-year term, of supervised release. ECF No. 117. Petitioner did not file a notice of appeal from the judgment of sentence.

         On February 6, 2012, Petitioner filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) [ECF No. 152], which the court denied on February 22, 2012. ECF No. 153. On April 20, 2012, Petitioner filed a motion under 28 U.S.C. § 2255, alleging ineffective assistance of counsel as the basis for relief. ECF No. 155. More specifically, Petitioner argued that his counsel failed to object to alleged errors in the presentence report and failed to inform him that the court improperly relied on these alleged errors in determining his sentence. Petitioner filed a second motion under 18 U.S.C. § 3582(c)(2) raising the same grounds for relief as asserted in the motion filed on February 6, 2012. Accordingly, the second motion was denied for the same reasons outlined in the court's order of February 22, 2012. ECF No. 157. On June 12, 2012, the district court denied Petitioner's § 2255 as untimely. 4:12-cv-00241-A (ECF No. 4).

         On March 22, 2013, Petitioner filed a second motion to vacate under 28 U.S.C. § 2255. As grounds for relief, Petitioner complained that the court imposed an illegal sentence through misapplication of the sentencing guidelines. The district court concluded that was the same claim raised in his first motion under § 2255. Therefore, the district court dismissed the March 22, 2013, petition as second or successive on March 25, 2013. ECF No. 4.

         On February 29, 2016, Petitioner filed a Motion for Authorization to File a Second or Successive Motion to Vacate under 28 U.S.C. § 2255. ECF No. 175. On March 1, 2016, an order was entered transferring the motion to the United States Court of Appeals for the Fifth Circuit. Petitioner alleged that he did not have the prerequisite number of prior convictions to qualify for a career offender enhancement. The motion was denied on May 18, 2016. 16-10224 (5th Cir.). On June 14, 2016, Petitioner filed another Motion for Authorization to File a Second or Successive Motion to Vacate. Petitioner relied on the Johnson decision and subsequent Welch decision to support his claim that the district court improperly utilized an enumerated offense of robbery to sentence him as a career offender under §4B1.2 of the sentencing guidelines. Petitioner's motion was denied on June 27, 2016. 16-10775 (5th Cir.).

         III. PETITIONER'S CLAIMS

         In support of his § 2241 petition before this Court Petitioner alleges that his trial counsel failed to investigate his case and failed to argue that the government's use of a prior conviction did not constitute a crime of violence under § 4B1.2(A)(2) of the sentencing guidelines. More specifically, Petitioner alleges that robbery in the state of Texas does not fall under the residual clause. In his amended petition, Petitioner cites Mathis v. United States, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), Descamps v. United States, 136 S.Ct. 2276 (2013) and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) for the proposition that his prior state conviction for aggravated robbery in the state of Texas cannot be used to establish him as a career offender. For relief, Petitioner seeks an order remanding his case for resentencing without the career offender enhancement.

         IV. STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and this Court's local rules, the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases in the U.S. District Courts (2014); see also Rule 1(b) Rules Governing § 2254 Cases in the U.S. District Courts (2014) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254). As a pro se litigant, Petitioner's pleadings are accorded liberal construction and held to less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent standard, the petition in this case is subject to summary dismissal. The requirement of liberal construction does not mean that the Court can ignore a clear failure to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990). As discussed more fully below, Petitioner clearly is not entitled to relief under 28 U.S.C. § 2241 and, therefore, no response is required of Respondent.

         V. DISCUSSION

         Prisoners seeking to challenge the validity of their convictions or their sentences are required to proceed under § 2255 in the district court of conviction. A petition for writ of habeas corpus, pursuant to § 2241, on the other hand, is intended to address the execution of a sentence, rather than its validity, and is to be filed in the district where the prisoner is incarcerated. Examples of an appropriate use of § 2241 include “actions challenging the computation of parole, computation of good time or jail credits, prison disciplinary actions, or ...


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