United States District Court
For The Eastern District of North Carolina
William Kinjo Smith )
v. ) Civil No ________________
Stephanie Hollemback, Warden )
Petitioner’s Memorandum In Support Of
His Motion For Relief Under 28 U.S.C.§ 2241
1. Petitioner, William Kinjo Smith, pro se in the above styled action, hereby respectfully requesting that this Honorable Court construe his pro se filing liberally and in his favor, “[because] pro se litigants are held to less stringent standards than formal pleadings drafted by lawyers.” Barefoot V. Polk, 242 Fed Appx. 82, 84 (4th cir. 2007). Citing Estelle v. Gamble 50 L. Ed. 2D 251, 261 (1976); Haines v. Kerner, 30 L. Ed. 2d 652, 653 (1972) (holding that the court must review and adjudicate the merits of Petitioner’s claims, and grant the appropriate relief) for the reasons discussed below.
2. Petitioner avers under the principles and rules of law set for in Alleyne v. United States, 570 U.S. 2151 (2013), he is “actually innocent” of his possession of a firearm enhancement, categorized as a “machine gun” that was not charged in the indictment or presented to the jury and that Title 28 U.S.C § 2255 is “inadequate or ineffective” to test the legality of his conviction. See, § 2255(e) “Savings Clause”.
3. This Honorable Court has jurisdiction pursuant to 28 U.S.C. § 2241, 28 U.S.C. § 1651(a) the All Writs Act in Alternative and Writ of Audita Querela.
4. The Savings Clause of 28 U.S.C. § 2255 (e) provides that a prisoner may seek habeas relief under § 2241, if the remedy under § 2255 is “inadequate or ineffective” to test the legality of his detention… The United States Court of Appeals for the Fourth Circuit has held that a § 2255 is inadequate or ineffective to test the legality of a conviction when:
(1.) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction.
(2.) subsequent to a Prisoner’s direct appeal and first § 2255 motion, the substantive law changed, such that the conduct of which the prisoner was convicted is NOT deemed to be criminal; and
(3.) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law… relief under the “Savings Clause” is confined… to instances of actual innocence of the underlying conviction. Turner v. United States, ___ U.S. Dist.__, LEXIS 9769 (D. Maryland 2012). “Petitions under § 2241 must be brought in the district where Petitioner is confined.” James V. Stansberry ___U.S. Dist.___ LEXIS 66261 (FNI) (E.D. VA 2011)
5. Petitioner is currently serving a 262 month sentence, housed at LSCI-Butner in North Carolina, under the direct supervision of Stephanie Hollemback, Warden; Petitioner’s sentence was imposed by the United States District Court for the Eastern District of Virginia, Alexandria Division, USDC No. 1:00-CR-00421-001. Petitioner has exhausted his direct appeal and first § 2255 motion.
6. Petitioner’s position is that his Alleyne claim is hereby properly brought in this case pursuant to § 2241 against the Warden of LSCI-Butner federal prison where he is confined, therefore, Petitioner’s claims are ripe for review because he has fully satisfied the jurisdictional prerequisites for presenting this action.
7. On November 2, 2000, a grand jury sitting in the Eastern District of Virginia returned a three-count indictment charging Petitioner with being an armed career criminal in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) [count 1]; and Felon in possession after 3 prior qualifying convictions, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1) [count 2]; possession of an unregistered destructive device, in violation of 5861 and 5871 [count 3], which was dismissed with prejudice upon the government’s motion prior to jury selection.
8. Petitioner proceeded to trial and on February 22, 2001, the jury returned a verdict of guilty as to counts 1 and 2 of the indictment. There followed on May 8 and May 15, 2001, three pro se motions: to arrest judgment (judgment of acquittal); to exclude prior convictions and to exclude machinegun enhancement, all of which were denied. Again, through trial counsel, Petitioner objected to the district court’s applying a sentencing enhancement under USSG 2k2.1(a) for a possession of a machinegun that was not charged in the indictment, presented to the Jury or that he admitted to.
9. Notwithstanding Petitioner’s objections, the District Court adapted the presentence report that included the categorization of a machinegun and sentenced Petitioner to 262 months imprisonment, followed by a three year supervised release. A timely filed direct appeal was dismissed by the Fourth Circuit on May 13, 2004. (96 Fed Appx. 890 LEXIS 9358).
10. On August 27, 2002 the District Court in Civil No. 03CV561-A issued its opinion and order denying Petitioner’s § 2255 Motion, and denying a Certificate of Appealability (COA).
11. In light of the Supreme Court’s ruling in Alleyne, relief is necessary for two significant reasons. The Supreme Court held that any fact that “Triggers or “increases” a mandatory minimum is an “Element” that must be charged in the indictment and then submitted to the jury for proof beyond a reasonable doubt. In this instant, Petitioner was charged and convicted of a two count indictment of possessing a number of firearms, after being deemed a felon, neither of which was a machinegun to warrant a sentencing enhancement… An ‘element’ of the offense of which Petitioner was not found guilty on to “trigger” and “increase” in the mandatory minimum range. Simply stated, the Supreme Court ruled in United States V. O’Brien, 560 U.S. 218 (2010), that the issue is whether a firearm is a machinegun is an “element” that must be charged in the indictment (the government had NOT charged it as an “element” of the offense in this case not proved to a jury beyond reasonable doubt). Id.
12. Petitioner is entitled to relief because he was convicted of a crime he was never charged with and serving unlawful sentence of 262 months that was premised on an unlawful conviction in violation of “due process” of law and U.S. constitution.
Argument and Authority
13. “Section 2241 applies to petitions of writ on habeas corpus filed by persons in custody in violation of the constitution or laws or treaties of the United States. “Ramsey v. Runion, No. 2:11-CV-396, LEXIS 126890 (E.D. VA Sept.5, 2012). In a § 2241 proceeding when a petitioner’s claim requires a court to apply a legal standard to a given set of facts the claim receives a de novo review. Id.
14. Title 28 U.S.C. § 2241 directs the court to examine a § 2241 application for writ of habeas corpus and either award the relief requested or order the government to file a response to show course why the writ should not be granted, unless it appears from the application that the applicant or person detained is NOT entitled to relief. Jones V. Johns, 2012 U.S. Dist. LEXIS 109483 (W.D.N.C. 2012).
15. In this context, Petitioner begs the Court’s indulgence, to not characterize this claim as one challenging the sentence. Petitioner is mindful that in order to invoke the “Savings Clause” he cannot present a claim of actual innocence of a simple sentencing enhancement not affecting the mandatory minimum. Bannerman V. Snyder, 325 F.3d 722, 724 (6th Cir. 2003), see also, Dutton V. Warden, FCI Estill, 37 F. App x 51, 53 (4th Cir. 2002). (holding that Apprendi could not be the basis for actual innocence claim).
16. Additionally, the Supreme Court’s decision in, Alleyne has made the conduct of which Petitioner was convicted of NOT criminal. The conduct of a felon in possession of a firearm under §§ 922(g)(1) and 924(e) were the core “elements” charged in the indictment and proved beyond a reasonable doubt to the jury. However, the High Court’s reasoning when Lower Court’s make sentencing factors formal “elements” of the underlying offense not charged in the indictment, are no longer valid because a criminal defendant cannot be convicted of any aggravating factors not charged in the indictment.
17. The majority of the Alleyne overruled Harris V. United States, 536 U.S. 545 (2002) and it extended the Sixth Amendment right to a jury trial to the facts that “trigger” or “increase” mandatory minimum sentences. These facts should be charged in the indictment and submitted to the jury for proof beyond a reasonable doubt.
18. Alleyne, unlike its predecessor, Apprendi promulgates two prongs. (1) “Trigger, and (2) “increase”… The similarity between Alleyne and Apprendi exist within the “Increase” prong. A challenge to the increase prong means that there was a conviction and the argument will suggest:
a. Apprendi – There is a violation to the maximum statutory sentence allowed, hence, an “increase” exceeding the maximum allowed by the statute.
b. Alleyne – The conviction for a crime that carried a mandatory minimum and the violation arose from an “increase” to another mandatory minimum. Both Apprendi and Alleyne require the “increase” factor be charged in the indictment.
19. Petitioner respectfully argues that the “trigger” factor is where Apprendi and Alleyne split, and is where Petitioner’s contentions rest… The “trigger” prong defines the requirements to convict a criminal defendant for an aggravated offense. The core offense, when, combined with the aggravating factors cpmstotites a whole other aggravated offense that has its own punishment range. Therefore, the “Triggering facts of Petitioner’s case must be charged in the indictment as well.
20. As the record proves on November 2, 2000 Petitioner was charged of being a felon in possession of a firearm, after sustaining three prior qualifying felony convictions. (18 U.S.C. §§ 922(g)(1) and 924(e)(1)). Petitioner proceeded to jury trial and ultimately convicted of two counts in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). At sentencing, over Petitioner’s objection, the government sought for an “increase” of the mandatory minimum under the Armed Career Criminal Act § (924(e)(1), and the court agreed to undermine the exclusive province of the jury determination of proof beyond a reasonable doubt on every “element” charged in the offense.
21. Once trial and jury deliberation began, the government had the judiciary duty to prove every “element” of the offense before Petitioner can be convicted of that crime. See, Inre Winship, 397 U.S. 358, 364(1970) [“L]est there remain any doubt about the constitutional stature of the reasonable doubt standard holding further that the “due process” clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id.
22. Filling in the gaps, Petitioner’s constitutional right to due process was offended to the point of miscarriage of justice, when the district court trial counsel and the prosecution, in essence, improperly interfered with a deliberating jury’s fact-finding function, and allowed the submission of an uncharged aggravated offense to come in for determination of guilt… The uncharged machinegun that neither the Grand-Jury nor the Petit Jury determined as a “Triggering” fact for the mandatory minimum range.
23. Moreso, the District Court was bound by the four corners of the grand jury’s intent in the indictment. Petitioner’s Sixth Amendment right to a jury trial was violated, when the District Court gave greater weight to the government’s request and going beyond these four corners… even though the specifity of the grand jury’s intent could not be reconciled by the trial jury, the court gave its own short thrift to a unanimous interpretation of a machinegun instead.
24. Petitioner’s defense and jury selection was predicated on what was charged in the indictment. (A cursory review of the trial transcripts will prove this fact… In effect, Petitioner was charged in a two-count indictment of §§ 922(g)(1) and 924(e)(1). Because § 924(e)(1) imposes a mandatory minimum sentence of fifteen years as “elements” of the offense under Alleyne it must be charged in the indictment and submitted to the jury. United States V. Curbelo, 2013 U.S. App. LEXIS 16541 (11th Cir. 2013)
25. Accordingly Alleyne changed what used to be a mere sentencing factors into formal “elements” of an aggravated offense. In the aftermath of Alleyne, everyone now agrees, that a possession of a machinegun constitutes an “element” of a separate offense and the government is required to charge that offense in the indictment and submitted to the jury. “by virtue of Alleyne overruling Harris, this case presents colorable situation akin to a modification (amendment or variance) of the indictment: the offense of conviction differs from the crime charged.” See, United States V. Yancey, 725 F.3d 602 (6th Cir. 2013).
26. Here, Petitioner is serving a 262 month sentence for a crime he was not charged with and the District Court should not have imposed a sentence based on uncharged “elements” that it “increased” the mandatory minimum because it did not have the jurisdiction to do so. Alleyne has invalidated the conduct of a conviction that resulted in extreme prejudice.
27. Petitioner contends that his § 2241 motion is the proper vehicle to advance his Alleyne claim. Because, he has exhausted his direct appeal, first § 2255 motion and lawfully cannot advance his claims pursuant to § 2255. Based on the facts of this case and the Fourth Circuit’s clarification in O’Brien (machinegun must be charged in the indictment) and Alleyne (anything that increase the mandatory minimum are “elements” of the offense, that must be charged in the indictment), this Honorable Court should either set aside his conviction and sentence of being in possession of a machinegun, at a minimum, remand Petitioner’s claim for an evidentiary hearing where he can further develop his claim with the benefit of newly appointed counsel.
28. If the Court concludes that Title 28 U.S.C. § 2241 does not entitle Petitioner to relief from his underlying machinegun conviction that was NOT charged in the indictment that impacted his sentence, nevertheless Petitioner is entitled to relief under U.S.C. § 1651(a) (All Writs Act), the Writ of Coram Nobis, Audeta Querela, United States V. Morgan, 346 U.S. 502 (1954), United States V. Arkinsade, 686 F.3d 248,252 (4th Cir. 2012), Because Petitioner satisfies all four requirements.
29. Where there is no other avenue for relief available to a party who claims that he is factually innocent as a result of a previously unavailable statutory interpretation… Where Alleyne applies to Petitioner, but habeas relief is unavailable under §§ 2255, 2241 and 1651(a). A certificate of Appealability should be issues.
30. Based on the foregoing principles, and that § 1651(a) authorizes federal courts to issue all writs necessary or appropriate in aid of their respective jurisdictions (relying in part on the All Writs Act in relief). Petitioner therefore respectfully requests that the Court grant him relief under the Supreme Court’s reasoning in Alleyne and O’Brien, or any relief the court deem appropriate.
William Kinjo Smith
P.O. Box 999
Butner, NC 27509-0999
Certificate of Filing And Service
I declare under the penalty of perjury that a true and correct copy of the foregoing instrument was mailed on this _____day of_______ 2014 to the following:
Clerk of Court
U.S. District Court
Eastern District of North Carolina
P.O. Box 25670
Raleigh, NC 27611
William Kinjo Smith
P.O. Box 999
Butner, NC 27509-0999
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