RASHAUN JONES represented by RASHAUN JONES SARAH A. CHURCHILL NICHOLS & WEBB, P.A. ATTORNEY TO BE NOTICED.
USA represented by RENEE M. BUNKER ATTORNEY TO BE NOTICED.
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION AND PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 1651 AND 28 U.S.C. § 2241
John C. Nivison U.S. Magistrate Judge
Petitioner Rashaun Jones has filed a second or successive motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 166.) Alternatively, Petitioner seeks relief pursuant to 28 U.S.C. § 1651 and 28 U.S.C. § 2241. Petitioner previously applied to the Court of Appeals for the First Circuit for leave to file a second or successive section 2255 motion. The First Circuit denied Petitioner’s application.
As part of its response to Petitioner’s current motion, the Government moved for summary dismissal. After a review of Petitioner’s motion and the Government’s request for dismissal, the recommendation is that the Court grant the Government’s request, and dismiss Petitioner’s motion.
Facts and Procedural History
Following a jury trial, Petitioner was convicted in June 2006 of conspiracy to distribute cocaine base and one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), and subject to the penalties set forth in 21 U.S.C. § 841(b)(1)(A). (Verdict Form, ECF No. 92; Judgment, ECF No. 115.) The Court subsequently sentenced Petitioner to a term of 188 months in prison, followed by a term of five years of supervised release. (Judgment at 2-3.) The First Circuit affirmed the conviction and the sentence. United States v. Jones, 523 F.3d 31, 33 (1st Cir. 2008).
Petitioner moved, pursuant to 18 U.S.C. § 3582, for a sentence reduction based on an amendment to the sentencing guidelines. (Motion, ECF No. 142.) After the Court determined that the amendment in question did not result in a lower base offense level for Petitioner, the Court denied the motion. (Order, ECF No. 143.) The First Circuit later affirmed the Court’s decision. (U.S.C.A. Judgment, ECF No. 150.)
In May 2009, Petitioner filed a motion pursuant to 28 U.S.C. § 2255. (Motion, ECF No. 1.) The Court interpreted his claims as follows: (1) “that the voice on a tape obtained by law enforcement through the use of a confidential informant was not his voice, ” which was an argument that Petitioner framed as a claim of ineffective assistance of counsel; and (2) ineffective assistance of counsel at trial and on appeal “for not challenging the warrantless search of the hotel room on the grounds that this search went beyond plain view when the investigating officers found a rice box containing drugs in a kitchen cabinet.” (Recommended Decision, ECF No. 25, at 1; Order Affirming, ECF No. 27.) In June 2010, the Court granted the Government’s motion for summary dismissal. (Order, ECF No. 27.) In March 2011, the First Circuit concluded that Petitioner failed to make the requisite showing of a denial of a constitutional right, and denied a certificate of appealability, pursuant to 28 U.S.C. § 2253(c)(2). (U.S.C.A. Judgment, ECF No. 37.)
In August 2011, Petitioner again moved, pursuant to 18 U.S.C. § 3582, for a sentence reduction. Through this motion, Petitioner argued that his drug quantity should be recalculated. (Motion, ECF No. 152.) The Court denied the motion, and in July 2012, the First Circuit affirmed the Court’s decision. (Order, ECF No. 154; U.S.C.A. Judgment, ECF No. 163.)
In July 2013, Petitioner filed with the First Circuit an application for permission to file a second or successive section 2255 motion. (Application, U.S.C.A. No. 13-1923, July 22, 2013.) Petitioner relied on the Supreme Court’s recent decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), in support of his application. The First Circuit denied the application, holding that “[b]ecause the Supreme Court has not declared its ruling in [Alleyne] to be retroactive to cases on collateral review, [Petitioner] may not rely upon it to satisfy § 2255(h)(2)’s gatekeeping requirement.” (U.S.C.A. Judgment, ECF No. 165.)
Despite the fact that Petitioner was unsuccessful in his request to file a second or successive section 2255 motion, Petitioner filed the pending motion in an envelope addressed to this Court in late February 2014. (Envelope, ECF No. 166-1.) Petitioner did not acknowledge in the motion that the First Circuit had denied his application for permission to file a second or successive section 2255 motion. According to a letter written by the Clerk of the First Circuit, the motion was mistakenly filed in the First Circuit, but in accordance with the Clerk’s instructions, the motion was docketed in this Court on March 3, 2014. (Motion, ECF No. 166; Letter, ECF No. 167 at 1.) Petitioner relies upon Alleyne in support of the motion, as he did in his application for leave to file the motion. In addition to citing section 2255, Petitioner relies upon two additional statutes: 28 U.S.C. § 1651, known as the All Writs Act, and 28 U.S.C. § 2241, which authorizes the Court to grant writs of habeas corpus.
As part of its response to Petitioner’s motion, the Government requests summary dismissal. (Response, ECF No. 168.) The Government argues that: (1) Petitioner has not received permission from the First Circuit to pursue a second or successive section 2255 motion; (2) Petitioner’s attempt to characterize his motion as one filed pursuant to section 2241 or section 1651 fails (citing Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008)); (3) the Supreme Court has not held that Alleyne is to be applied retroactively to cases on collateral review, which the First Circuit recognized in its ...