United States District Court, C.D. California
ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER
HONORABLE JOHN F. WALTER, United States District Judge
Nicholas Queen (“Petitioner”) has filed a
Petition for Writ of Habeas Corpus by a Person in Federal
Custody (“Petition”) pursuant to 28 U.S.C. §
2241 (“Section 2241”). Petitioner challenges his
1994 conviction and sentence imposed in the United States
District Court for the District of Maryland. As discussed
below, the Court dismisses this action without prejudice for
lack of subject matter jurisdiction.
a jury trial in the United States District Court for the
District of Maryland, Petitioner was found guilty of two
counts of bank robbery by intimidation under 18 U.S.C. §
2113(d), two counts of armed bank robbery in violation of 18
U.S.C. § 2113(f), and two counts of carrying a firearm
during the commission of a crime of violence under 18 U.S.C.
§ 924(c). ECF Docket No. (“Dkt.”) 1 at 2;
see also United States v. Queen, 73 F.3d 359, 1995
WL 756347 *1 (D. Md. 1995). On September 30, 1994, Petitioner
was sentenced to a 562-month term of incarceration. Dkt. 1 at
2; see also Queen v. Smith, No. 3:CV-04-2077, 2005
WL 1377835, at *1 (M.D. Pa. June 6, 2005).
appealed his conviction and sentence to the United States
Court of Appeals for the Fourth Circuit. Queen, 73
F.3d 359. On December 21, 1995, Petitioner's conviction
was affirmed. Id.
1997, Petitioner has filed over a dozen pleadings challenging
his conviction and sentence in the sentencing and custodial
courts. See United States v. Queen,
1:93-cr-0366-WMN, 2012 WL 1107176, at *1 (D. Md. Mar. 30,
2012) (listing cases). Petitioner's first Motion to
Vacate pursuant to 28 U.S.C. § 2255 (“Section
2255”) was denied and dismissed on the merits on May 8,
1997. See Queen v. United States of America,
97-1184-HMN (D. Md. 1997) at Dkt. 3.
21, 2016, the Fourth Circuit issued an Order granting
Petitioner authorization to file a successive Section 2255
motion. United States v. Queen, 1:93-cr-00366-WMN-1
(D. Md., filed Aug. 31, 1993) at Dkt. 300. The court found
Petitioner “made a prima facie showing that the new
rule of constitutional law announced in Johnson v. United
States, 135 S.Ct. 2551 (2015), and held to apply
retroactively to cases on collateral review by Welch v.
United States, 136 S.Ct. 1257 (2016), may apply to his
case.” Id. Hence, Petitioner's motion to
vacate his 1994 conviction and sentence pursuant to Section
2255 (“Maryland Section 2255 Motion”) was filed
in the Maryland District Court on June 21, 2016, where it is
still pending. Id. at Dkt. 301.
February 6, 2017, Petitioner constructively
filed the instant pro se Petition for
Writ of Habeas Corpus (“Petition”) pursuant to
Section 2241 in this Court, challenging his 1994 conviction
and sentence. Dkt. 1, Pet. As in his Maryland Section 2255
Motion, Petitioner asserts the statute under which he was
convicted and sentenced contain the language, “crime of
violence, ” which is unconstitutionally vague under the
reasoning of Johnson, 135 S.Ct. 2551 (holding the
“residual clause” of 18 U.S.C. § 924(e) was
unconstitutionally vague) and Welch, 136 S.Ct. 1257
(holding Johnson should be applied retroactively).
February 17, 2017, the Court issued an Order to Show Cause
why the Petition should not be dismissed for lack of
jurisdiction because Petitioner was challenging the legality
of his 1994 conviction and sentence and Section 2255's
“escape hatch” provision appeared inapplicable.
Dkt. 3, OSC.
February 26, 2017, Petitioner constructively filed a Response
to the February 17, 2017 Order to Show Cause. Dkt. 4,
Response. Petitioner argues the Court has jurisdiction over
his Petition because (a) he can show he is actually innocent,
and (b) he lacks an unobstructed procedural shot to present