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Jones v. Revell

December 20, 2005


The opinion of the court was delivered by: J. Phil Gilbert U. S. District Judge


Petitioner Marcus Deangelo Jones, an inmate in the Federal Correctional Institution in Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241. He also seeks leave to proceed in forma pauperis (Doc. 2), and the Court finds that he is, in fact, indigent. Therefore, this motion is GRANTED. Jones also filed a motion to stay proceedings (Doc. 5) during the pendency of his temporary transfer out of state. The Court notes that Jones has since returned to F.C.I. Greenville; therefore, the motion to stay is DENIED as moot.

This case is now before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases. After carefully reviewing the petition in the present case, the Court concludes that Jones is not entitled to relief, and the petition must be dismissed.

Jones was convicted of several counts of drug-trafficking in 2000, and he is serving a sentence of 327 months imprisonment. United States v. Jones, Case No. 99-04041-01 (W.D. Mo., filed Nov. 19, 1999); his direct appeal was unsuccessful. United States v. Jones, 275 F.3d 673 (8th Cir. 2001). His first collateral attack on his sentence was also unavailing. Jones v. United States, Case No. 02-cv-4123-SOW (W.D. Mo., filed June 17, 2002); the Eighth Circuit denied his request for a certificate of appealability and dismissed his appeal from that decision. Jones v. United States, Appeal No. 03-1756 (8th Cir., filed Nov. 25, 2002).*fn1 Jones then sought permission to file a successive habeas petition, which was denied. Jones v. United States, Case No. 04-3837 (8th Cir., filed Nov. 22, 2004).*fn2

In this § 2241 petition, Jones now challenges his continued confinement, using one of the more creative attempts ever presented to this Court. Instead of directly challenging his sentence, he invokes 18 U.S.C. § 3582, which provides in pertinent part:

(c) Modification of an imposed term of imprisonment.-- The court may not modify a term of imprisonment once it has been imposed except that --

(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

Jones argues that this provision requires the Bureau of Prisons to file a motion for sentence reduction with the court, as "extraordinary and compelling reasons" require such action. In particular, he claims that his Presentence Report contains inaccurate information, and that he is in custody under an invalid judgment for crime that he was not convicted of. An interesting approach, to be sure, but it falls just as flat as a more direct argument. Regardless of how he couches his argument, Petitioner is merely arguing that his sentence is invalidated by the recent Supreme Court cases of Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).*fn3

Essentially, this habeas corpus action is a thinly veiled effort to file a motion for reduction of sentence under 18 U.S.C. § 3582. However, the Seventh Circuit has held that such an action is, in substance, a collateral attack on a conviction that must be pursued under 28 U.S.C. § 2255. United States v. Lloyd, 398 F.3d 978, 979-80 (7th Cir. 2005).

Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari, capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error, or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls.

Id. at 980.

In this case, where it is clear that Jones has already filed one collateral attack on his conviction, the Court is required to construe the instant motion as a second or successive collateral attack. Lloyd, 398 F.3d at 980. Because Jones has not shown that he has been granted leave to file such a successive collateral attack, the Court has no choice but to dismiss this action; this Court has no jurisdiction to consider the claims presented. See 28 U.S.C. § 2255, ¶ 8; Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996).

In summary, this habeas action does not survive review under Rule 4. Accordingly, this action is ...

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