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Coyt Bryant v. Michael Babcok

October 24, 2012

COYT BRYANT, PETITIONER,
v.
MICHAEL BABCOK,
RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER and FINDINGS & RECOMMENDATIONS

Petitioner, a federal prisoner proceeding pro se, has filed a petition purportedly pursuant to 28 U.S.C. § 2241. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). For the reasons outlined below, the undersigned recommends that the petition be dismissed, pursuant to Local Rule 110, for failure to comply with Local Rule 183(b).

Background

On December 4, 2007, petitioner was sentenced in the Eastern District of North Carolina to a custodial sentence of 195 months after his conviction under 18 U.S.C. §§ 922(g)(1) and 924(1), felon in possession of a firearm. See U.S. v. Bryant, 4:06-cr-00035-H, E.D.N.C., Doc. No. 52 (judgment). The district court had enhanced the sentence after determining that petitioner qualified as an Armed Career Criminal. Id., Doc. No. 68.

Petitioner appealed his sentence, challenging only the district court's reliance on a prior New York state conviction for second degree attempted burglary, asserting that the conviction does not qualify as a predicate offense under the Armed Career Criminal Act ("ACCA") because he received a sentence of exactly one year.

Id., Doc. No. 70 at 2.

On July 20, 2009, the Court of Appeals for the Fourth Circuit affirmed the conviction. See United States v. Bryant, Appeal No. 08-4031, Doc. No. 51 (4th Cir. 2009); U.S. v. Bryant, 4:06-cr-00035-H, E.D.N.C., Doc. Nos. 70, 71.

On March 29, 2010, petitioner filed a motion to vacate under 28 U.S.C. § 2255 in the Eastern District of North Carolina, which motion was dismissed on December 14, 2010. See U.S. v. Bryant, 4:06-cr-00035-H, E.D.N.C., Doc. Nos. 86, 96. In denying relief, the district court noted that "[a]t the heart of each of the claims in petitioner's motion is the court's classification of petitioner as an Armed Career Criminal. All of his claims are without merit." See id., Doc. No. 95 at 3. On April 5, 2011, the trial court denied reconsideration. Id. at 107. On July 26, 2011, the Fourth Circuit subsequently denied a certificate of appealability. See U.S. v. Bryant, Appeal No. 11-6103, Doc. No. 18 (4th Cir. 2011).

On November 10, 2011, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Southern District of Indiana. See Bryant v. Lockett, 2:11-cv-00307 WTL WGH, Doc. No. 1. Petitioner listed his "Place of Confinement" as the United States Penitentiary in Terre Haute, Indiana. Id. Among other things, petitioner argued in this petition that the district court erroneously enhanced his sentence. See id., Doc. No. 1 at 8. The Indiana District Court directed petitioner to show cause why the action should be allowed to proceed as a petition under 28 U.S.C. § 2241, or, in the alternative, it should not be transferred to the sentencing district court. See id., Doc. No. 3. After petitioner responded, the Indiana District Court denied the petition, finding that petitioner seeks habeas corpus relief in this action based on his claim that his previous conviction for attempted burglary was a misdemeanor, not a felony, and therefore could not have supported the enhancement of his sentence. This contention was rejected in his direct appeal. [Petitioner] challenged his conviction with a § 2255 motion in the Eastern District of North Carolina and the trial court denied the motion. [Petitioner] offers no reason in his petition for a writ of habeas corpus or his supplement which persuades this court that a difference resolution -- or even further adjudication -- of this claim is now warranted.....[P]petitioner has sought relief pursuant to 28 U.S.C. § 2241 under circumstances which do not permit or justify the use of that remedy.

Id., Doc. 7 at 2.

Petitioner appealed, and the Court of Appeals for the Seventh Circuit affirmed, finding that [Petitioner] was convicted of being a felon in possession of a firearm in the Eastern District of North Carolina. His conviction was affirmed on appeal in United States v. Bryant, No. 08-4031, 329 Fed. Appx. 435 (4th Cir. 2009). And his motion under 28 U.S.C. § 2255 was denied. Bryant v. United States, 2010 WL 5173607, Nos. 4:06-cr-35-1H, 4:10-CV-40-H (E.D.N.C. Dec. 14, 2010). He seeks habeas corpus relief under 28 U.S.C. §2241 based on his claim that his conviction for attempted burglary was a misdemeanor, not a felony, and therefore could not have supported the enhancement of his sentence. This contention was raised in his direct appeal and in his § 2255 motion. Thus, [petitioner] has not shown that § 2255 is inadequate. We AFFIRM.....

Bryant v. Lockett, Appeal No. 12-1242 (7th Cir. March 14, 2012).

While petitioner was a prisoner at FCI-Herlong in the Eastern District of California, he filed with this court the instant petition for relief under 28 U.S.C. § 2241. See Doc. No. 1. Petitioner alleges that the district court improperly used his New York attempted burglary conviction to enhance his sentence. Petitioner further alleges that a writ of habeas corpus via 28 U.S.C. § 2241(c)(3) is the proper one legally, because a remedy via 2255 is inadequate or ineffective to test the legality ...


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