United States District Court, D. Massachusetts
RONALD M. HOENIG
MEMORANDUM AND ORDER
RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.
August 21, 2018, Ronald M. Hoenig, who is incarcerated at FMC
Devens, filed a document captioned as a Petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2241. For the reasons
set forth below, the court denies the Petition without
challenges the 240-month sentence he received in 2002 after
having been convicted in the Federal District Court for the
Northern District of Texas for being a felon in possession of
a firearm. See United States v. Hoenig, Crim. No.
02-0035-Y (N.D. Tex.). He argues that his sentence should not
have been enhanced under the Armed Criminal Career Act, 18
U.S.C. § 924(e) (“ACCA”). More specifically,
he represents that his Texas convictions for burglary should
not have been treated as predicate offenses for purposes of
the ACCA. Hoenig represents that he pursued a direct appeal
and filed a motion under 28 U.S.C. § 2255, although it
is not clear from the Petition whether he challenged the
application of the ACCA during these
2016, the trial court appointed the Federal Public Defender
to pursue any available post-conviction relief for Hoenig in
light of the Supreme Court's rulings in Johnson v.
United States, 135 S.Ct. 2551 (2015), in which the
Supreme Court struck down the residual clause of the ACCA, as
unconstitutionally vague. See United States v.
Hoenig, Crim. No. 02-0035-Y (N.D. Tex. May 27, 2016)
(docket entry #209). On June 24, 2016, the United States
Court of Appeals for the Fifth Circuit granted Hoenig's
motion to file a second or successive § 2255 motion.
See Id. (docket entry #211). The Fifth Circuit
stated that its “grant of authorization is tentative in
that the district court must dismiss the § 2255 motion
without reaching the merits if it determines that Hoenig has
failed to make a showing required by §
2255(h)(2).” Id. at 2.
second § 2255 motion is still pending. See Hoenig v.
United States, C.A. No. 16-00548-Y (N.D. Tex.). On
August 20, 2018, the government moved again to dismiss the
second § 2255 motion, arguing that the court lacks
jurisdiction over the petition because it does not meet the
requirements for a second or successive § 2255 motion.
See Id. (docket entry #26). According to the
government, Hoenig failed to establish that his sentence was
based on the ACCA residual clause-i.e., the portion
of the statute invalidated by Johnson.
federal prisoner cannot challenge the legality of his
sentence through petition for a writ of habeas corpus under
28 U.S.C. § 2241 unless it appears that a § 2255
motion is “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e).
Under § 2255, a federal prisoner who claims that his
“sentence was imposed in violation of the Constitution
or laws of the United States” may “move the court
which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a). A federal
prisoner seeking to file a second or successive § 2255
motion must first obtain authorization from the court of
appeals to do so. 28 U.S.C. §§ 2244(b)(3)(A),
2255(h). Such authorization is available only when the second
or successive motion is based either on (1) newly discovered
evidence that would establish innocence or (2) a new rule of
constitutional law made retroactive on collateral review by
the Supreme Court. See 28 U.S.C. § 2255(h).
Hoenig invoked the latter provision in seeking leave to file
a second § 2255 motion.
Hoenig has not demonstrated that a motion under § 2255
is inadequate or ineffective to challenge the legality of his
sentence. His second § 2255 motion is still pending in
the Northern District of Texas. Unless and until the motion
is denied, Hoenig cannot make a threshold argument that a
motion under § 2255 is inadequate or ineffective.
Further, a prisoner's inability to meet the requirements
for filing a second or successive § 2255 motion does not
automatically render a motion under § 2255
“inadequate or ineffective.” See Trenkler v.
United States, 536 F.3d 85, 98-99 (1st Cir. 2008).
the Petition is DENIED WITHOUT PREJUDICE.