                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2001

In Re Nwanze
Precedential or Non-Precedential:

Docket 00-1459




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Recommended Citation
"In Re Nwanze" (2001). 2001 Decisions. Paper 49.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/49


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Filed March 13, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1459

*IN RE: AUSTEN O. NWANZE,

       Petitioner

*(Amended in accordance with Clerk's Or der
dated 12/18/00 pursuant to Rule 21(a)(2)(A))

On Petition for a Writ of Mandamus
Directed to the United States District Court
for the Western District of Pennsylvania
(Related to D.C. Civ. No. 98-00025E)
District Judge: Honorable Sean J. McLaughlin

Argued February 15, 2001

BEFORE: MANSMANN, AMBRO, and GREENBERG,
Circuit Judges

(Filed: March 13, 2001)

       Jon Hogue (argued)
       Hogue & Lannis
       3400 Gulf Tower
       Pittsburgh, PA 15219

        Attorneys for Petitioner
       Paul J. Brysh (argued)
       Tina M. Oberdorf
       Office of the United States Attorney
       Harry Litman
       United States Attorney
       633 United States Post Office &
        Courthouse
       Pittsburgh, PA 15219

        Attorneys for Respondent

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on a petition for
a writ of mandamus in the following circumstances. On
June 8, 1992, the United States District Court for the
Eastern District of Virginia sentenced the petitioner, Austen
O. Nwanze, following his conviction at a jury trial, to prison
terms of 168 months for various drug of fenses and 60
months for each of two firearms violations. The court
ordered Nwanze to serve all the sentences concurrently
even though one of the two firearms convictions and
sentences was for using or carrying a firear m in violation of
18 U.S.C. S 924(c) during or in relation to certain other
offenses. Subsequently, the district court amended the
judgment of conviction and sentence so that the 60-month
sentence on the section 924(c) conviction ran consecutively
to the other sentences as required by section 924(c)(1)(A).
Consequently, Nwanze's sentence became 228 months.
Nwanze appealed from the amended judgment of conviction
and sentence to the United States Court of Appeals for the
Fourth Circuit which affirmed on September 24, 1993, in
an unpublished opinion.

Thereafter, Nwanze filed a motion in the Eastern District
of Virginia to vacate the sentence pursuant to 28 U.S.C.
S 2255. The district court denied that motion and once
again on appeal the court of appeals affir med.

                               2
After the failure of Nwanze's section 2255 petition, the
Supreme Court in Bailey v. United States , 516 U.S. 137,
116 S.Ct. 501 (1995), held that a defendant could not be
convicted of using a firearm under section 924(c) unless the
government proved that the defendant"actively employed
the firearm during and in relation to the predicate crime."
Id. at 150, 116 S.Ct. 509. While Bailey was not concerned
directly with the "carries" prong of section 924(c), the
government in this proceeding has conceded that "[a]
review of the facts of this case would indicate that Nwanze's
conviction would in all likelihood, be vacated under Bailey
and existing Fourth Circuit authority." App. at 23.

In reliance on Bailey, Nwanze attempted to file a second
motion under section 2255 in the Eastern District of
Virginia to vacate his sentence, but he was not successful
as the district court and the court of appeals denied him
authorization to proceed under the Antiterr orist and
Effective Death Penalty Act of 1996 ("AEDP A") because his
motion was an unauthorized second or successive motion.
While the orders of the courts do not expr essly so recite,
the parties believe that the district and cir cuit courts
denied him permission to proceed as, in their view, Bailey
did not adopt a new rule of constitutional law ther eby
justifying the filing of the petition. See App. at 40-44; 28
U.S.C. S 2255(2). These dispositions left Nwanze in the
unfortunate position of being compelled to serve afive-year
term of imprisonment, at the end of the balance of his
confinement for his other offenses, for conduct that was not
criminal within the scope of the statute pursuant to which
he had been convicted and sentenced.

The denial of Nwanze's motion, however, did not
necessarily leave him without a remedy for our opinion in
In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), suggested that
a prisoner in his situation after the Supreme Court's
opinion in Bailey could seek habeas corpus r elief under 28
U.S.C. S 2241 in a district court in the district in which he
was confined, even though ordinarily a petitioner should
advance a challenge to a conviction and sentence thr ough
the means of a motion under section 2255 in the
sentencing court. See Dorsainvil, 119 F .3d at 252. Thus, in
reliance on Dorsainvil, Nwanze filed a pro se habeas corpus

                               3
petition in the Western District of Pennsylvania under
section 2241, which he asserted was justified as the
gatekeeping provisions of section 2255 as enacted by the
AEDPA barred him from relief under that section.

The government filed a response to the petition
suggesting, as we have indicated, that on the merits
Nwanze was entitled to relief under Bailey . Nevertheless, it
contended that he should pursue that relief in the Eastern
District of Virginia either under 28 U.S.C. S 2255 or by
filing an application seeking "a writ of err or coram nobis, a
writ of audita querela, or a writ pursuant to 28 U.S.C.
S 1651." App. at 20. Accordingly, the government argued
that the district court should dismiss the petition or,
alternatively, transfer the case to the Easter n District of
Virginia. Significantly, the gover nment pointed out that if
the court vacated Nwanze's conviction under section 924(c),
he would be exposed to enhancements of his sentencing
level, "including, but not limited to a two-point
enhancement under U.S.S.G. S 2K2.1," dealing with
unlawful receipt, possession or transportation of firearms.

The district court referred the petition to a magistrate
judge for a report and recommendation. See Nwanze v.
Hahn, 97 F. Supp.2d 665, 666 (W.D. Pa. 2000). In her
comprehensive report and recommendation, the magistrate
judge described the background of the case and pointed out
that "[a]s a general proposition only matters concerning the
conditions of confinement or the execution of a sentence
are within the subject matter jurisdiction of the court
presiding in the district in which a prisoner is
incarcerated." Id. at 669 (inter nal quotation marks omitted).
On the other hand, "[c]hallenges to the validity of a federal
prisoner's conviction or sentence should be pr esented to
the sentencing court." Id. Thus, the magistrate judge
concluded that under section "2241 jurisprudence, the
issues raised in [Nwanze's] petition would not usually be
within the jurisdiction of [the Wester n District of
Pennsylvania]." Id.

The magistrate judge nevertheless recognized that
Dorsainvil stood for the proposition that r esort to section
2241 habeas corpus relief was warranted if the Bailey claim
otherwise could not be asserted. But the magistrate judge

                               4
distinguished Dorsainvil on the ground that there, unlike
the situation here, two circuits wer e not involved as
"Dorsainvil was tried, convicted and sentenced within the
Third Circuit [whereas] Nwanze was tried, convicted and
sentenced within the Fourth Circuit and now seeks to have
[the Western District] Court to bestow upon him the benefit
of the Third Circuit's Dorsainvil decision." Id. at 670.

The magistrate judge next discussed Alamin v. Gerlinski,
30 F. Supp.2d 464 (M.D. Pa. 1998), in which the district
court in the Middle District of Pennsylvania, the petitioner's
place of confinement, in circumstances mirr oring those
here, transferred a section 2241 petition to the Western
District of North Carolina where the petitioner had been
convicted. Following the transfer, the transferee district
court granted the petitioner relief and vacated his 60-
month sentence for violation of section 924(c) in a situation
in which the conviction could not be reconciled with Bailey.
The magistrate judge indicated that she was "persuaded by
the logic of the Alamin example," Nwanze, 97 F. Supp.2d at
671, and thus she recommended that the court transfer
Nwanze's petition to the Eastern District of V irginia. Id. at
672. The district court adopted the magistrate judge's
report and recommendation following which Nwanze
appealed to this court.

When the clerk of this court examined the notice of
appeal, she recognized that inasmuch as or dinarily "orders
transferring venue are not immediately appealable,"
Carteret Sav. Bank v. Shushan, 919 F .2d 225, 228 (3d Cir.
1990), it appeared that we lacked appellate jurisdiction.
Consequently, she submitted the case to a panel of this
court so that the panel could consider whether to dismiss
the appeal. The panel examined the case and deter mined
that we did not have appellate jurisdiction but that we had
discretion to treat the notice of appeal as a petition for
mandamus. See Nascone v. Spudnuts, Inc., 735 F.2d 763,
773 (3d Cir. 1984). The panel also concluded that
inasmuch as it was doubtful that Nwanze could have in the
first instance filed his petition for habeas corpus under
section 2241 in the Eastern District of V irginia, it appeared
"that the District Court might have acted beyond its
authority in transferring [his] habeas corpus petition to the

                               5
sentencing court." Thus, the panel order ed that the notice
of appeal be treated as a petition for mandamus. This court
then appointed an attorney for Nwanze and, after briefs
were filed, entertained oral argument in this matter.

II. DISCUSSION

In considering this matter, we first point out that we are
exercising original jurisdiction under 28 U.S.C. S 1651
rather than appellate jurisdiction under 28 U.S.C.S 1291 or
some other statutory authority. Consequently, we must be
particularly circumspect in our exercise of our authority
here. In this regard, we quote our opinion in Hahnemann
University Hospital v. Edgar, 74 F.3d 456, 461 (3d Cir.
1996) (internal citations, brackets, and quotation marks
omitted):

       The writ of mandamus is a drastic remedy that a court
       should grant only in extraordinary circumstances in
       response to an act amounting to a judicial usurpation
       of power. Given its drastic nature, a writ of mandamus
       should not be issued where relief may be obtained
       through an ordinary appeal. Thus, in addition to the
       jurisdictional prerequisites inher ent in the language of
       [28 U.S.C. S] 1651(a), two additional pr erequisites for
       issuance of a writ are: (1) that petitioner have no other
       adequate means to attain the desired relief, and (2)
       that petitioner meet its burden of showing that its right
       to the writ is clear and indisputable. Even when these
       prerequisites are met, issuance of the writ is largely
       discretionary, bearing in mind the unfortunate
       consequence of making the judge a litigant and the
       highly disfavored effect of piecemeal appellate review.1

Moreover, as we indicated in Carter et, "the clear error
[justifying the issuance of the writ] should at least
approach the magnitude of an unauthorized exer cise of
judicial power [and] [f]inally the party seeking the relief
_________________________________________________________________

1. We recognize that the district judge no longer is a respondent in a
mandamus case. See Fed. R. App. P. 21. Nevertheless, we believe that
the essential standards for issuing a writ of mandamus have not
changed.

                               6
must have no other adequate means to attain the desired
relief." 919 F.2d at 232-33 (inter nal citations, brackets, and
quotation marks omitted).

Nwanze, who is well aware of the foregoing standards,
summarizes his argument as follows:

       The Petition for Writ of Mandamus is appr opriate since
       no other remedial relief exists. In this matter, Mr.
       Nwanze has properly filed a writ of habeas corpus that
       must be determined in the court where it was filed. No
       legal reason exists to transfer the matter to a court
       without jurisdiction. Finally, Mr. Nwanze's right to
       relief is clear and indisputable so granting of the writ
       of mandamus is appropriate and just.

Br. at 10. Thus, Nwanze emphasizes that it is particularly
appropriate to grant the writ to provide r elief from a
transfer order where, as he apparently believes is the
situation here, the transferee court does not have
jurisdiction and the petitioner has no other way to obtain
relief. Of course, he also relies on Dorsainvil to demonstrate
that the district court in the Wester n District of
Pennsylvania had jurisdiction to grant him habeas r elief.

In considering this matter, we point out that inasmuch as
a Bailey issue challenges the validity of a conviction,
ordinarily a petitioner should present the issue to the
sentencing court rather than the court in the district in
which he is confined. But in this case Nwanze believes that
the gatekeeping provisions in section 2255 for eclose that
possibility as the Court of Appeals for the Fourth Circuit
already has precluded him from filing a second or
successive section 2255 motion. Nevertheless, if the gate
closed by section 2255 somehow could be opened in the
Eastern District of Virginia, Nwanze should seek relief
there, as that exercise of jurisdiction would be in harmony
with the congressional jurisdictional scheme in sections
2241 and 2255.

Of course, one way to open the gate, albeit indir ectly,
would be to allow the petitioner to seek habeas corpus relief
under section 2241. See Dorsainvil, 119 F .3d at 251; see
also In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). We
question, however, whether such a petition could be filed in

                               7
the district of the sentencing court except in cases in which
that court happened to be in the same district in which the
petitioner was confined. Of course, allowing a petitioner to
raise the Bailey issue in a section 2241 petition in the
sentencing court only in those circumstances would be
quite arbitrary, because the ability of the sentencing court
to consider a petitioner's section 2241 petition would be
dependent on sheer happenstance. In any event, we have
serious doubt that the transfer of the case can be justified
on the theory that Nwanze could have brought his habeas
corpus petition in the district court in the Easter n District
of Virginia, and if not, it would be difficult to justify the
transfer order on that basis. See Chatman-Bey v.
Thornburgh, 864 F.2d 804, 810 (D.C. Cir. 1988); 28 U.S.C.
S 1404(a) ("For the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil
action to any other district or division wher e it might have
been brought."); see also Dorsainvil, 119 F.2d at 252
(motion for certification of second section 2255 petition
denied without prejudice to filing a section 2241 petition in
the district of confinement).2

Our suggestion that it is doubtful that an inter -district
transfer of a section 2241 petition may be made fr om the
district of confinement to the district of sentencing to
continue to be treated after transfer as a section 2241
petition, does not overlook the litigation in Alamin v.
Gerlinski, 30 F. Supp.2d at 464, and Alamin v. Gerlinski, 73
F. Supp.2d 607 (W.D.N.C. 1999), to which the magistrate
_________________________________________________________________

2. We are satisfied that section 1404(a) applies to transfers of habeas
corpus petitions, see United States ex r el. Meadows v. New York, 426
F.2d 1176, 1183 n.9 (2d Cir. 1970), as habeas corpus petitions are
technically civil actions and we see no reason why that section should
not apply to them. See Schlanger v. Seamans, 401 U.S. 487, 490 n.4, 91
S.Ct. 995, 998 n.4 (1971); see also Fed. R. Civ. P. 81(a)(2). We note that
the parties are in agreement that Nwanze could not have instituted this
section 2241 proceeding in the Eastern District of Virginia. We also note
that it is quite clear that ordinarily a transfer of a section 2241
proceeding relating to the validity of the petitioner's conviction from
the
district of confinement to the district of sentencing would be in
furtherance of the convenience of the parties and witnesses. See
Dorsainvil, 119 F.3d at 249; Meadows , 426 F.2d at 1183 n.9.

                               8
judge referred.3 Ther e the district court in the Middle
District of Pennsylvania, the situs of the petitioner's
confinement, transferred his section 2241 petition to the
Western District of North Carolina, the situs of his
sentencing, after the Court of Appeals for the Fourth
Circuit did not permit the petitioner tofile an application
for relief under section 2255 following the decision in
Bailey. While we do not doubt that both district courts in
Alamin took a common sense approach to the problem
before them, still they seem not to have considered whether
28 U.S.C. S 1404(a) barred the transfer , as the petitioner
might not have been able to institute the action in North
Carolina. Moreover, the parties in Alamin agreed that if the
Pennsylvania district court did not dismiss the petition it
should be transferred to the North Carolina court. Alamin,
30 F. Supp.2d at 468.

We need not, however, be overly concer ned with the
limitations on transfer in section 1404(a), as we believe that
there is at least a plausible argument that if Nwanze has no
other remedy in the district of his conviction and
sentencing, the Court of Appeals for the Fourth Cir cuit
would approve of the district court's exer cising jurisdiction
under the All-Writs Act, 28 U.S.C. S 1651(a) to grant him a
writ of error coram nobis. See United States v. Shamy, 886
F.2d 743 (4th Cir. 1989); United States v. Mandel, 862 F.2d
1067 (4th Cir. 1988). If such be the case, then the district
court in the Western District of Pennsylvania would not
have transferred this case to a court without jurisdiction. In
both Shamy and Mandel, the petitioners had been
convicted of mail fraud and racketeering.4 Subsequently,
long after their convictions had been affir med and the
petitioners had completed service of their sentences, the
Supreme Court held in McNally v. United States, 483 U.S.
350, 107 S.Ct. 2875 (1987), that the mail fraud statute, 18
U.S.C. S 1341, did not extend to schemes to defraud
persons of their intangible rights such as the right to
honest government. Relying on McNally, the petitioners in
_________________________________________________________________

3. It is the belief of the panel that the corr ect spelling of the
respondent's
name in the Alamin litigation is Gerlinski and thus we have corrected the
incorrect spelling of the name in the caption in the North Carolina case.

4. Shamy also involved wire fraud.

                               9
both cases filed motions for a writ of err or coram nobis,
unsuccessfully in Shamy, but successfully in Mandel. On
the appeals, the Court of Appeals for the Fourth Cir cuit
made it clear that if McNally had been extant at the time of
the petitioners' direct appeals, it would have reversed the
convictions. See Shamy, 886 F.2d at 745; Mandel, 862 F.2d
at 1074. In reaching this result, the court concluded that
the "jury instructions . . . improperly allowed petitioners'
convictions for acts which are not within the r each of the
mail fraud statute." Id. at 1075. Thus, the court in both
cases held that a writ of coram nobis should issue.

We think that unless the district court in the Eastern
District of Virginia can grant r elief on another basis, it is
likely that it will follow the logic of Mandel and Shamy
when it considers Nwanze's case and thus exer cise
jurisdiction. It is true that Mandel and Shamy are
distinguishable from this case because the petitioners there
had served their sentences before seeking the writs of
coram nobis and Nwanze has not started serving his 60-
month sentence on the section 924(c) conviction.
Nevertheless, we think that the Virginia court probably will
regard that distinction as making it all the more compelling
for it to exercise jurisdiction and grant Nwanze relief. After
all, can it seriously be argued that a person who has not
yet served an illegal sentence is less in need of r elief from
its imposition than a person who has served it?
Accordingly, while we cannot be certain that the Virginia
court will exercise jurisdiction and consider Nwanze's
petition on the merits, still we are confident enough that it
will do so that we will exercise our discr etion to deny
Nwanze's petition for a writ of mandamus.

We are encouraged to reach our r esult by the practical
circumstance here. In United States v. Goggins, 99 F.3d 116
(3d Cir. 1996), we held that when a district court after
Bailey vacated the sentence it previously entered on a
section 924(c)(1) conviction, the court could r esentence the
defendant on the remaining count of conviction after
increasing his offense level by 2 levels under U.S.S.G.
S 2D1.1(b)(1). While we express no opinion on the question
of whether if the Virginia district court vacates Nwanze's
conviction on the section 924(c) conviction, it should

                               10
resentence him on the basis of an enhanced sentencing
level on the remaining counts, we are r eluctant to foreclose
that possibility. Indeed, the Court in Bailey recognized that
even if the "uses" prong of section 924(c) is inapplicable,
the Sentencing Guidelines might provide a basis for
enhancing the sentencing level. Bailey, 516 U.S. at 150,
116 S.Ct. at 509. Therefore, it would be better for Nwanze
to obtain relief under Bailey fr om the sentencing court
rather than from the court in the district of confinement as
we have some doubt as to whether the latter court could
resentence on the remaining counts.

Moreover, our conclusion in this r espect takes into
account a circumstance that we noted in Goggins, that "if
the district court knew at the time of the original
sentencing that it could not sentence on all the counts on
which the defendant was convicted, it might have imposed
a greater sentence on the counts on which it could
sentence validly." Goggins, 99 F.3d at 119. We think that
only the sentencing court can know what its intentions
would have been if it had been sentencing on the r emaining
counts without imposing a sentence under section 924(c).
See also United States v. Davis, 112 F.2d 118, 122-23 (3d
Cir. 1997); Alamin v. Gerlinski, 73 F . Supp.2d at 611-12.

We close our discussion with the following comment.
While we have reached our result on the basis of our belief
that the United States District Court for the Easter n
District of Virginia will address Nwanze's request for relief
from his section 924(c) conviction and sentence on the
merits, we recognize that we could be wr ong in that
expectation. Thus, though we will deny the petition for a
writ of mandamus, we do so without prejudice to Nwanze's
reinstituting his habeas corpus petition in the Western
District of Pennsylvania, or in such other district in which
he may be confined, if the Virginia court denies him relief
on jurisdictional grounds. Finally, while we r ecognize that
Nwanze would be delayed in obtaining relief if he must
reinstitute his habeas corpus petition, we doubt that the
delay would prejudice him, as it appears that he still would
be serving his 168-month sentence when he again sought
relief in the district of his confinement. The parties shall
bear their own costs in this matter.

                               11
III. CONCLUSION

For the foregoing reasons the petition for a writ of
mandamus will be denied.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12
