614 F. App'x 580

UNITED STATES of America v. Howard HAWKINS, a/k/a Mark McLendon Howard Hawkins, Appellant.

No. 14-4308.

United States Court of Appeals, Third Circuit.

Submitted for a Decision on the Issuance of a Certificate of Appealability and for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 7, 2015.

Opinion filed June 9, 2015.

Rebecca R. Haywood, Esq., Office of United States Attorney, Pittsburgh, PA, for Appellee.

Howard Hawkins, Pine Knot, KY, pro se.

Before: FUENTES, GREENAWAY, JR., and VANASKIE, Circuit Judges.

*581OPINION *

PER CURIAM.

Howard Hawkins appeals from the order of the District Court dismissing in part and denying in part his motion to vacate his criminal sentence, which he filed under 28 U.S.C. § 2255, Rule 60(b) of the Federal Rules of Civil Procedure, and 28 U.S.C. § 2241. We will deny a certificate of ap-pealability (“COA”) to the extent that one is required and will otherwise affirm.

I.

In 2006, Hawkins was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In light of Hawkins’s criminal history, which included a Pennsylvania state conviction of conspiring to possess with the intent to deliver crack cocaine, the District Court sentenced him to a mandatory term of fifteen years in prison under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We affirmed. See United States v. Hawkins, 280 Fed.Appx. 117 (3d Cir.2008). Hawkins later filed a § 2255 motion seeking relief from his criminal judgment. The District Court denied it on the merits, and we denied a COA. (C.A. No. 09-1682, July 20, 2009.)

At issue here is another § 2255 motion that Hawkins filed in the District Court. Hawkins argued that, under Descamps v. United States, — U.S. ——, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), his Pennsylvania conspiracy conviction no longer constitutes a “serious drug offense” under 18 U.S.C. § 924(e)(1). Hawkins also argued that his § 2255 motion should not be deemed second or successive or, in the alternative, that the District Court should permit him to proceed under Rule 60(b) or § 2241. The District Court disagreed, and it dismissed Hawkins’s motion in part and denied it in part. Hawkins appeals.1

II.

Primarily for the reasons explained by the District Court, jurists of reason would not debate whether Hawkins was entitled to proceed under § 2255 or Rule 60(b), and we agree that he was not entitled to proceed under § 2241 either.

First, Hawkins’s § 2255 motion constitutes a second or successive § 2255 motion because his previous § 2255 motion was denied on the merits and his present § 2255 motion attacks the same criminal judgment. See United States v. Winkelman, 746 F.3d 134, 135 (3d Cir.2014). Hawkins argues that, by reference to the abuse-of-the-writ doctrine that predated the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), his § 2255 motion is not successive because he could not have raised his argument under Descamps before. Cf. Benchoff v. Colleran, 404 F.3d 812, 817-18 (3d Cir.2005).

Hawkins is incorrect. The substance of Hawkins’s challenge was both ripe and available at the time of his criminal judg*582ment, see Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and he previously challenged the District Court’s reliance on his Pennsylvania conspiracy conviction both on direct appeal and in his previous § 2255 motion, see, e.g., Hawkins, 280 Fed.Appx. at 121-22. His attempt to do so again on the basis of Descamps is governed by 28 U.S.C. §§ 2244 and 2255(h), which, as relevant here, require him to obtain our authorization to proceed on the basis of a “new rule of constitutional law.” 28 U.S.C. §§ 2244(b)(2)(A), 2255(h)(2). Because he had not obtained our authorization, the District Court was required either to dismiss his § 2255 motion for lack of jurisdiction or transfer it to this Court to be treated as an application under §§ 2244 and 2255(h). See Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.2002). There was no reason for the District Court to transfer it to this Court because Hawkins’s argument under Descamps does not prima facie satisfy the §§ 2244 and 2255(h) standard.2

Second, and despite Hawkins’s protestations to the contrary, his request to proceed under Rule 60(b) constituted a second or successive § 2255 motion as well because it-asserted a claim for relief from his criminal judgment. See Gonzalez v. Crosby, 545 U.S. 524, 531, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Thus, the District Court lacked jurisdiction over this aspect of his motion for the same reason.

Finally, the District Court properly concluded that it lacked jurisdiction to consider Hawkins’s motion under § 2241 because § 2241 petitions must be filed in a prisoner’s district of confinement and Hawkins was and is confined within the Eastern District of Kentucky. See 28 U.S.C. § 2241(a); Rumsfeld v. Padilla, 542 U.S. 426, 442, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). The District Court also concluded that Hawkins’s request to proceed under § 2241 lacked merit because § 2255 is not inadequate or ineffective to test the legality of his detention. Cf. United States v. Tyler, 732 F.3d 241, 246 (3d Cir.2013); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997). There was no reason for the District Court to consider whether § 2241 relief might be available under the law of this circuit, however, because Hawkins is confined and should have requested § 2241 relief in Kentucky.

In that regard, the District Court could have considered whether transferring Hawkins’s § 2241 petition to the proper forum would have been “in the interest of justice.” 28 U.S.C. § 1631. We will not *583remand for that purpose because we see no indication that Sixth Circuit law would permit Hawkins to proceed under § 2241. See, e.g., Davis, 751 F.3d at 775 (“The Supreme Court in Descamps explained that it was not announcing a new rule[.]”); Martin v. Perez, 319 F.3d 799, 804 (6th Cir.2003) (recognizing Dorsainvil-like exception permitting resort to § 2241 but explaining that it requires “a rigorous showing, because [n]o circuit court has to date permitted a post-AEDPA petitioner who was not effectively making a claim of actual innocence to utilize § 2241 ... as a way of circumventing § 2255’s restrictions on the filing of second or successive habeas petitions”) (quotation marks and alteration omitted). For present purposes, however, we express no definitive opinion on the merits of that issue.

For these reasons, we will deny a COA to the extent that one is required and will otherwise affirm the judgment of the District Court.

United States v. Hawkins
614 F. App'x 580

Case Details

Name
United States v. Hawkins
Decision Date
Jun 9, 2015
Citations

614 F. App'x 580

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!