United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
TALWANI UNITED STATES DISTRICT JUDGE
John Denares Gordon, who is currently incarcerated at Federal
Medical Center (“FMC”) Devens in Ayer,
Massachusetts, filed this Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 [#1] challenging a
life sentence imposed in the Eastern District of Michigan.
Presently at issue is Respondent's Amended Motion to
Dismiss (“Resp. Am. Mot. Dismiss”) [#14].
For the reasons set forth below, Respondent's motion is
ALLOWED and the Petition is DISMISSED without prejudice.
1995, Petitioner and 18 other codefendants were indicted in
the Eastern District of Michigan. Second Superseding
Indictment, United States v. Brown et al., No.
2:92-cr-81127-AC-33 (E.D. Mich. Feb. 21, 1995), Dkt. 882;
see Petitioner's Memo in Support of § 2241
Petition (“Pet. Mem.”), Ex. A (“Relevant
Pages of Superseding Indictment”) [#2-1]. A jury
convicted Petitioner of: conspiracy to possess cocaine with
intent to distribute and to distribute cocaine and cocaine
base, in violation of 21 U.S.C. § 846; aiding and
abetting an intentional killing, in violation of 21 U.S.C.
§ 848(e)(1)(A) and 18 U.S.C. § 2; and using or
carrying a firearm in relation to a drug-trafficking crime,
in violation of 18 U.S.C. § 924(c). Brown, No.
2:92-cr-81127-AC-33 at Dkt. 1243. Petitioner was sentenced to
life in prison, plus five years. Id. at Dkt. 1343;
see also Resp. Am. Mot. Dismiss, Ex. 2 (“Sixth
Circuit Order”) [#14-2]. On direct appeal, the Court of
Appeals for the Sixth Circuit affirmed his conviction and
sentence. United States v. Polk, 182 F.3d 919 (6th
Cir. 1999); see Resp. Am. Mot. Dismiss 2 [#14].
has since filed multiple post-conviction motions under 28
U.S.C. § 2255 in the Eastern District of Michigan.
See Corrected Petition, 3, In re John
Gordon, No. 17-1118 (6th Cir. 2017), Dkt. 1 (listing
prior proceedings); see Resp. Am. Mot. Dismiss, Ex.
1 (“Docket from Sixth Circuit Court of Appeals”)
[#14-1]. On September 5, 2017, Petitioner's most recent
motion for authorization to file a second or successive
section 2255 petition was denied by the Sixth Circuit. In
re John Gordon, No. 17-1118 (6th Cir. 2017), Dkt. 8;
see Docket from Sixth Circuit Court of Appeals
subsequently filed the instant Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2241. His Petition
makes several arguments attacking the invalidity of his
sentence. First, Petitioner argues that the “imposition
of his life sentence is unlawful and contravenes with”
the Supreme Court's ruling in Miller v. Alabama,
567 U.S. 460 (2012), made retroactive by Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). Pet. Mem. 19 [#2].
Petitioner's second argument is that recent developments
in case law, such as Apprendi v. New Jersey, 530
U.S. 466 (2000) and United States v. Booker, 543
U.S. 220 (2005), permit him to challenge the sentence he
received for his conviction under 21 U.S.C. § 841(b)(1).
See Pet. Mem. 10-11 [#2]. Third, Petitioner argues
that the increase in the calculation of his guideline
sentencing range based on his career criminal enhancement
resulted in a higher range, and higher sentence, than he
might otherwise have received. Pet. Mem. 12. [#2]. He argues
that the Supreme Court's ruling in Molina-Martinez v.
United States, 136 S.Ct. 1338 (2016), affords him the
possibility of arguing that the court misapplied the
guideline range and that “there is a reasonable
probability that the district court may have imposed a lower
sentence.” Pet. Mem. 15 [#2]. Finally, Petitioner
argues that his conviction violates the Fifth and Eight
Amendments because the conspiracy was not charged, and, even
if it were charged, it occurred when Petitioner was 15 years
old, and therefore, it cannot support a life sentence under
Miller. Pet. Mem. 22 [#2].
the present case was pending, the Sixth Circuit sua
sponte reconsidered Petitioner's 28 U.S.C. §
2255(h) motion. See Order on Second or Successive
Petition, In re John Gordon, No. 17-1118 (6th Cir.
Sep. 5, 2017), Dkt. 10; see also Sixth Circuit Order
[#14-2]. The Sixth Circuit noted that Petitioner had argued
in his motion that he was entitled to relief pursuant to
Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016),
because he had been sentenced to mandatory life without
parole based on crimes he had committed as a juvenile.
Id. One of Petitioner's co-defendants had made
the exact same argument, and had been granted leave to
proceed. Id. In light of the conflicting orders, on
reconsideration, the Sixth Circuit granted Petitioner leave
to proceed under section 2255(h). Id. Petitioner has
now filed such a habeas petition in the Eastern District of
Michigan. See United States v. Brown, et al.,
2:92-cr-81127-AC-33 (E.D. Mich. Nov. 6, 2018), Dkt. 2337.
1, 2018, Respondent filed an Amended Motion to
Dismiss [#14] in this action, which Petitioner has
in connection with Petitioner's section 2255 petition in
the Eastern District of Michigan is ongoing. See
Order Regarding Briefing Schedule, U.S. v. Brown, et
al., 2:92-cr-81127-AC-33 (E.D. Mich. Jan 14, 2019)
(Cohn, J.), Dkt. 2350.
argues that this court does not have jurisdiction to consider
Petitioner's petition because the Sixth Circuit Court of
Appeals has already allowed him to file a further petition in
the sentencing court, and because Petitioner's filing
attempts to circumvent “the strict limitations placed
on the filing of successive petitions under 28 U.S.C. §
2255.” Resp. Am. Mot. Dismiss 3 [#14]. In the
alternative, Respondent alleges that Petitioner's filing
is untimely because it seeks relief under cases decided over
a year ago. Id. at 7.
petitioner may collaterally challenge the length of his
sentence under 28 U.S.C. § 2255. Section 2255
“provides for post-conviction relief in four instances,
namely, if the petitioner's sentence (1) was imposed in
violation of the Constitution, or (2) was imposed by a court
that lacked jurisdiction, or (3) exceeded the statutory
maximum, or (4) was otherwise subject to collateral
attack.” David v. United States, 134 F.3d 470,
474 (1st Cir. 1998); 18 U.S.C. § 2255(a) (listing
grounds). Recourse to proceedings under section 2255 is
limited by constraints imposed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which among other things, requires a federal prisoner who
seeks to prosecute a second or successive section 2255
petition to obtain pre-clearance from the court of appeals.
28 U.S.C. § 2255(h).
brought his petition under 28 U.S.C. § 2241, rather than
section 2255. But “[a] close analysis of the substance
of the petition in this case leaves no doubt but that,
regardless of its label, the petition falls within the
compass” of section 2255. Trenkler v. United
States, 536 F.3d 85, 97 (1st Cir. 2008). Despite
Petitioner's assertions to the contrary, his claims all
seek to attack the length of his sentence. He does not seek
to attack the conditions of his confinement or “such
matters as the administration of parole, computation of a
prisoner's sentence by prison officials, prison
disciplinary actions, prison ...