Alejandro Hernandez v. J. Martinez , 327 F. App'x 340 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-5-2009
Alejandro Hernandez v. J. Martinez
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4615
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CLD-144 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4615
___________
ALEJANDRO DEJESUS HERNANDEZ,
Appellant
v.
WARDEN J. MARTINEZ,
LSCI Allenwood
__________________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 08-cv-00840)
District Judge: Honorable Yvette Kane
__________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 26, 2009
Before: RENDELL, HARDIMAN and STAPLETON, Circuit Judges
(Filed: May 5, 2009)
_________
OPINION OF THE COURT
_________
PER CURIAM
Alejandro Dejesus Hernandez appeals pro se from the District Court’s dismissal of
his habeas petition. By Clerk’s order, this appeal was dismissed for failure to prosecute
because Hernandez had neither paid the filing fee nor filed an application for leave to
proceed in forma pauperis (“IFP”). We later received his application for leave to proceed
IFP, which was dated prior to the Clerk’s order, and we construe that application also as a
motion to reopen this appeal. Hernandez’s motion to reopen and his application to
proceed IFP are granted. Because this appeal presents no substantial question, we will
summarily affirm. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
I.
In 1991, a federal jury in the Eastern District of Virginia found Hernandez guilty
of conspiracy to possess and distribute drugs in violation of 21 U.S.C. §§ 841(a)(a) and
846. Its verdict did not specify the identity or amount of the drugs, but the trial court
found that the crimes involved more than five kilograms of cocaine and sentenced
Hernandez to 324 months of imprisonment. See United States v. Hernandez, 977 F.2d
574, No. 91-5188, 1992 WL 250056, at *1 (4th Cir. Oct. 2, 1992). Hernandez challenged
that finding on appeal, but the United States Court of Appeals for the Fourth Circuit
affirmed. See id. at *3-4. Hernandez then filed a motion under 28 U.S.C. § 2255 to
vacate his sentence on the grounds of ineffective assistance of counsel. The District
Court denied that motion and the Fourth Circuit denied Hernandez’s request for a
certificate of appealability. See United States v. Hernandez, 155 F.3d 562, No. 98-6615,
1998 WL 398760, at *1 (4th Cir. July 9, 1998).
Hernandez was later transferred to a federal prison located in Pennsylvania. In
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2001, he filed another habeas petition, purportedly under 28 U.S.C. § 2241. Relying on
Apprendi v. New Jersey, 530 U.S. 466 (2000), he argued that the identity and amount of
the drugs involved should have been resolved by the jury. The District Court dismissed
Hernandez’s petition after concluding that he was required but unable to proceed under §
2255, and we affirmed. See Fraser v. Zenk, 90 Fed. Appx. 428 (3d Cir. 2004). In
particular, we explained why Hernandez’s Apprendi claim did not allow him to avoid the
gate-keeping requirements of § 2255 by proceeding under § 2241 instead.
Some four years later, Hernandez filed the habeas petition at issue here, once again
under § 2241. This time, Hernandez argues that he is “actually innocent” of his sentence
because (1) he was charged with conspiracy to possess and distribute marijuana in
addition to cocaine, (2) the jury’s verdict did not identify the drugs involved, and (3) for
sentencing purposes, the trial court should have assumed that the jury had convicted him
only on the basis of marijuana instead of finding that the crime actually involved cocaine.
Hernandez relies for this argument solely on Edwards v. United States, 523 U.S.
511 (1998). In Edwards, the defendant was charged with possessing a substance that
contained both cocaine and cocaine base (i.e., “crack”), but the jury was instructed that it
should convict if the substance contained either cocaine or crack and it returned only a
general guilty verdict. The trial court then found that the substance contained both
cocaine and crack and sentenced the defendant on that basis. The defendant argued that,
under the Sentencing Guidelines, the drug statutes and the Constitution, the trial court
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was required to assume from the jury’s general verdict that it had convicted him only of
possessing cocaine. The Supreme Court rejected this argument under the Guidelines,
explaining that the trial court had done precisely what the Guidelines then required it to
do by determining the identity and amount of the drugs involved. See id. at 513-14. The
Supreme Court declined to reach the defendant’s other arguments because his sentence
was less than the statutory maximum for cocaine only and thus would have been proper
even if the trial court had assumed that it contained no crack. See id. at 515.
Hernandez argues that his sentence, by contrast, exceeded the statutory maximum
for conspiracy to possess and distribute marijuana only. Thus, he in essence argues that
the Supreme Court’s reason for not reaching the statutory and constitutional arguments in
Edwards do not apply to him. Acting on a Magistrate Judge’s Report and
Recommendation, which explains why Hernandez may not proceed under § 2241, the
District Court dismissed Hernandez’s petition by order entered November 12, 2008.
Hernandez appeals.1
II.
Federal prisoners challenging the validity of their sentences must proceed under §
1
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A
certificate of appealability is not required to appeal the denial of Hernandez’s putative §
2241 petition. See Burkey v. Marberry, 556 F.3d 142, ___, No. 07-4782, 2009 WL
385419, at *2 (3d Cir. Feb. 18, 2009). Our review of the District Court’s legal
conclusions is plenary. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d
Cir. 2002).
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2255 unless the § 2255 remedy is “inadequate or ineffective.” 28 U.S.C. § 2255(e);
Cradle, 290 F.3d at 538. In this case, Hernandez relies solely on the Supreme Court’s
decision in Edwards. That decision was issued in 1998, and did not announce a new,
retroactively-applicable rule of constitutional law. Thus, if Hernandez is required to
proceed under § 2255, his motion would be barred by both the one-year statute of
limitations and the restrictions on second or successive motions applicable to § 2255
motions. See 28 U.S.C. § 2255(f) and (h).
As Hernandez concedes, that fact alone does not render the § 2255 remedy
“inadequate or ineffective.” See Cradle, 290 F.3d at 539. Hernandez instead argues that
Edwards renders him “actually innocent” of his sentence and that we should allow resort
to § 2241 under the principles we applied in In re Dorsainvil, 119 F.3d 245 (3d Cir.
1997). In that case, we allowed a prisoner to proceed under § 2241 when, after his § 2255
petition had been denied, the Supreme Court interpreted the statute of conviction in a way
that “decriminalized” his conduct. See id. at 252. We reasoned that a § 2255 proceeding
was inadequate and ineffective because the Supreme Court’s decision was not of
constitutional dimension, and the petitioner thus could not bring a second § 2255 motion,
but that disallowing any challenge would amount to a miscarriage of justice because the
petitioner had no prior opportunity to present his claim and his conduct no longer
constituted a crime. See id. at 151-52. Hernandez argues that this reasoning applies also
to his claim under Edwards.
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As the Magistrate Judge explained, however, Hernandez’s claim is not like the
claim at issue in In re Dorsainvil. Edwards did not change the substantive elements of the
crimes of which Hernandez was convicted or render his conduct non-criminal, and
Hernandez does not argue otherwise. Edwards also does not entitle Hernandez to relief
from his sentence. The holding of Edwards is merely that the then-prevailing Sentencing
Guidelines required the judge to determine the identity and amount of controlled
substances for sentencing purposes, just as the judge at Hernandez’s trial did, and the
Court expressly declined to decide more than that. Accordingly, Hernandez’s claim does
not fall under the narrow exception we recognized in In re Dorsainvil and does not
otherwise allow him to proceed under § 2241.
Even if it did, we would affirm on the alternative ground that Hernandez’s petition
is an abuse of the writ. See Queen v. Minor, 530 F.3d 253, 255 (3d Cir. 2008).
Hernandez’s Edwards claim was available to him when he filed his first § 2241 petition,
and he has neither offered any explanation for raising it only now nor argued that he is
factually innocent of the crimes of which he was convicted. See id.
Accordingly, we will affirm. Hernandez’s motion for summary reversal is denied.
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