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Queen v. Shinn

United States District Court, C.D. California

March 13, 2017

NICHOLAS QUEEN, Petitioner,
v.
DAVID SHINN, Respondent.

          ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION

          HONORABLE JOHN F. WALTER, United States District Judge

         I.

         INTRODUCTION

         Petitioner 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.

         II.

         BACKGROUND

         Following 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).[1] 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).

         Petitioner 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.

         Since 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.

         On June 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.

         On February 6, 2017, Petitioner constructively filed[2] 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). Id.

         On 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.

         On 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 his ...


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