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Donald v. McConnell

United States District Court, W.D. Louisiana, Alexandria Division

October 5, 2018

ALBERT DONALD, Petitioner
v.
CHRIS MCCONNELL, Respondent

          DEE D. DRELL JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge

         Before the Court is a petition for writ of habeas corpus (28 U.S.C. § 2241) filed by pro se Petitioner Albert Donald (“Donald”) (#16314-055). Donald is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the Federal Correctional Institution in Pollock, Louisiana. Donald challenges the legality of his sentence imposed in the United States District Court for the Western District of New York.

         Because Donald cannot meet the requirements of the savings clause of 28 U.S.C. § 2255, his petition should be dismissed for lack of jurisdiction.

         I. Background

         Donald was convicted of drug trafficking offenses and a firearms offense. He was sentenced to an aggregate term of 240 months of imprisonment. United States v. Donald, 07-CR-6208L, 2013 WL 1580501, at *1 (W.D. N.Y. Apr. 12, 2013). Donald's conviction and sentence were affirmed by summary order. United States v. Donald, 417 Fed.Appx. 41, 42 (2d Cir. 2011).

         Donald filed a motion to vacate under 28 U.S.C. § 2255 alleging that he received ineffective assistance of counsel and is actually innocent of the crimes charged. (Docket No. 6:11-CV-06265, W.D. N.Y.). The motion was denied. Donald's appeal to the United States Court of Appeals for the Second Circuit was also denied. (Docket No. 13-2320, 2nd Cir.).

         Donald filed several motions to reduce his sentence, which were denied because Donald was sentenced to a statutory minimum. (Docket No. 6:07-CR-06208, W.D. N.Y., Docs. 135, 136, 151, 152, 164, 168).

         Donald filed another motion to vacate, citing Alleyne v. United States, 133 S.Ct. 2151 (2013). (Docket No. 6:07-CR-06208, W.D. N.Y., Doc. 153). The motion was denied as second and successive. (Docket No. 6:07-CR-06208, W.D. N.Y., Doc. 157).

         Donald filed a third motion to vacate, which was transferred to the Second Circuit. The appellate court denied the petition. (Docket No. 6:07-CR-06208, W.D. N.Y., Docs. 158, 159, 165).

         Finally, Donald sought leave to file a successive § 2255 motion based on United States v. Sellers, 784 F.3d 876 (2d Cir. 2015). The appellate court denied the request because the motion was not based on any newly discovered evidence or a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. (Docket No. 16-2443, 2nd Cir.).

         In his § 2241 petition, Donald claims that his prior felony conviction should not have been used to enhance his sentence because he was sentenced as a “youthful offender.” Donald's claim has been litigated fully in the Western District of New York and in the Second Circuit Court of Appeals, both of which rejected the argument. United States v. Donald, 07-CR-6208L, 2013 WL 1580501, at *1 (W.D.N.Y. Apr. 12, 2013); United States v. Donald, 417 Fed.Appx. 41, 46 (2d Cir. 2011).

         II. Law and Analysis

         A. Donald cannot meet the requirements of ...


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