                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

           v.
                                                         Criminal No. 02-376-01 (CKK)
 DOROTHY MAJU HENRY,

    Defendant.


                                 MEMORANDUM OPINION
                                    (February 28, 2014)

       Defendant Dorothy Maju Henry was convicted in 2005 of three counts under 21 U.S.C. §

960 relating to her role in an international heroin conspiracy. Presently before the Court is

Defendant’s pro se [240] Motion to Correct Sentence Pursuant to 18 U.S.C. § 3582(c).

Defendant claims that Alleyne v. United States, 133 S. Ct. 2151 (2013) and Peugh v. United

States, 133 S. Ct. 2072 (2013) combine to compel a reduction in her sentence. The Court,

however, need not address whether Alleyne and Peugh do in fact mandate such a reduction

because upon consideration of the pleadings 1, the relevant legal authorities, and the record as a

whole, the Court concludes that Defendant’s petition does not meet the criteria for a motion

under § 3582(c), and that the Court of Appeals for the District of Columbia Circuit has not

certified this petition as 28 U.S.C. § 2255 would require. Accordingly, Defendant’s [240] Motion

to Correct Sentence Pursuant to 18 U.S.C. § 3582(c) is DENIED.

       On March 31, 2004, a jury in the United States District Court for the District of Columbia


       1
         Def.’s Mot. to Correct Sentence Pursuant to 18 U.S.C. § 3582(c), ECF No. [240]
(“Def.’s Mot.”); Gov’t’s Resp. to Def.’s Mot. to Correct Sentence Pursuant to 18 U.S.C. §
3582(c), ECF No. [253] (“Gov’t Opp’n”); Defense Counsel’s Supp. Response. on Def.’s Pro Se
Mot. to Correct Sentence, ECF No. [260] (“Supp. Response”); Gov’t’s Response to Defense
Counsel’s Supp. Response on Def.’s Pro Se Mot. to Correct Sentence, ECF No. [265] (“Gov’t
Response”).
found Defendant guilty of (a) one count of conspiracy to import one kilogram or more of a

substance containing a detectable amount of heroin into the United States from Kenya and

elsewhere and (b) two counts of distributing or causing the distribution of one kilogram or more

of heroin outside the United States knowing that it would be imported into the United States.

See Verdict Form, ECF No. [150]. Congress has prescribed a mandatory minimum of ten years

in prison for importing at least one kilogram of heroin. See 21 U.S.C. § 960(b). On January 5,

2005, this Court sentenced the Defendant to 288 months in prison and five years of supervised

release. See Judgment, ECF No. [182]. Defendant appealed to the United States Court of Appeals

for the District of Columbia Circuit, which upheld her conviction. United States v. Henry, 207 F.

App’x 3 (D.C. Cir. 2006).

       On February 12, 2008, Defendant filed a habeas petition pursuant to 28 U.S.C. § 2255,

alleging ineffective assistance of counsel. See Motion for Relief Under Title 28 U.S.C. § 2255,

ECF No. [213]. On October 21, 2011, this Court denied Defendant’s petition. See Order, ECF

No. [234]; Memorandum Opinion, ECF No. [233]. Defendant now seeks a sentence reduction

under 18 U.S.C. § 3582(c).

       Under Title 18, Section 3582(c) of the United States Code:

       The court may not modify a term of imprisonment once it has been imposed
       except that, (1) in any case, (A) the court, upon motion of the Director of the
       Bureau of Prisons, may reduce the term of imprisonment . . . (B) the court may
       modify an imposed term of imprisonment to the extent otherwise expressly
       permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure,
       and (2) in the case of a defendant who has been sentenced to a term of
       imprisonment based on a sentencing range that has subsequently been lowered by
       the Sentencing Commission . . . , the court may reduce the term of imprisonment .
       . . if such a reduction is consistent with applicable policy statements issued by the
       Sentencing Commission.

18 U.S.C. § 3582(c).


                                                2
       Here, the Bureau of Prisons has not made a motion, Defendant has not moved under

another statute or Rule 35 of the Federal Rules of Criminal Procedure, and the Sentencing

Commission has not subsequently lowered the sentencing range for the crimes that Defendant

was convicted of. Compare U.S. SENTENCING GUIDELINES MANUAL § 2D1.1 (2009) (base level

of 32 for importing at least one kilogram of heroin) with U.S. SENTENCING GUIDELINES MANUAL

§ 2D1.1 (2005) (same). Defendant does not argue that any of the conditions for applying §

3582(c) have been met; in fact, part of her argument is that the Court should apply the 2002

Guidelines, not the 2005 Guidelines. Def.’s Mot. at 2. Rather, Defendant argues that her sentence

pursuant to the Sentencing Guidelines was itself unconstitutional, as a defendant’s base level and

sentencing enhancements under the Guidelines are “elements” of the offense which the jury must

find beyond a reasonable doubt under Defendant’s reading of Alleyne and Peugh. See id.

Therefore, Defendant argues that her sentence was unconstitutionally enhanced beyond the

statutory minimum of ten years.

       Defendant’s court-appointed counsel 2, recognizing that Defendant’s initial pro se claim is

not cognizable under 18 U.S.C. § 3582(c), urges the Court to decline to “procedurally bar”

Defendant’s claims, and to construe them using a different “procedural mechanism.” Supp.

Response at 4. Counsel suggests a writ of coram nobis or a writ of habeas corpus as possible

alternatives. See id. The Court does have the duty to construe pro se filings liberally, and the



       2
          Defendant filed her § 3582(c) motion pro se. On July 18, 2013, the Court ordered the
Federal Public Defender to file a response to the Defendant’s motion. See Order, ECF No. [241].
The Public Defender expressed concern that it would be improper for them to file on
Defendant’s behalf because Defendant had previously accused them of providing her with
ineffective assistance. See Response of the Federal Public Defender to Court’s Order, ECF No.
[256]. The Court therefore appointed Gregory Smith, Esq., to file a supplemental motion on
behalf of Defendant. See Notice of Attorney Appearance, ECF No. [257]. Mr. Smith has ably
discharged his assigned responsibilities, and the Court thanks him for his well-stated arguments.
                                                 3
power to reinterpret claims that otherwise would be barred under a different procedural

mechanism. See Toolasprahad v. Bureau of Prisons, 286 F.3d 576, 582-83 (D.C. Cir. 2002)

(construing a pro se motion for enlargement of time as a motion for relief from judgment to

avoid a time bar). However, a writ of coram nobis would be inappropriate in this case: a writ of

coram nobis is used to vacate criminal convictions after the sentence has been fully served, and

is not a substitute for habeas corpus. See generally United States v. Morgan, 346 U.S. 502, 507-

513 (1954) (tracing the development of coram nobis from the common law and holding that it

applies to federal courts under the All Writs Act). Because Defendant has not fully served her

sentence, coram nobis is not an appropriate remedy for her.

       Alternatively, Defendant’s counsel contends, the Court could construe Defendant’s §

3582(c) motion as a habeas petition under 28 U.S.C. § 2255. However, because this would be

Defendant’s second petition under 28 U.S.C. § 2255, the general bar on successive habeas

petitions, 28 U.S.C. § 2255(h), would apply unless Defendant could show that “a panel of the

appropriate court of appeals” has certified that the petition contains allegations based on

powerful newly discovered evidence 3 or “a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §

2255(h). The petition would also be time-barred unless filed within a year of when “the right

asserted was initially recognized by the Supreme Court, if that right was newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. §

2255(f). To determine if a right was “newly recognized by the Supreme Court” or was “made

retroactively applicable to cases on collateral review,” a court must apply the framework of



       3
         Defendant does not claim to have powerful newly discovered evidence; her claim is
based entirely on the legal effect of Alleyne and Peugh.
                                                  4
Teague v. Lane, 489 U.S. 288 (1989). If construed as a habeas petition, Defendant’s claim would

be uncertified and therefore procedurally barred. Because Defendant’s claim is procedurally

barred, the Court may not reach the question of whether Alleyne and Peugh are retroactively

applicable. 4

        Defendant’s claim is barred under § 2255(h) because “a panel of the appropriate court of

appeals” (here, the D.C. Circuit) has not certified that Defendant’s petition contains a new rule of

constitutional law that would apply to her. This is not surprising, as Defendant filed her motion

under 18 U.S.C. § 3582(c), which does not contain such a requirement. But while a court is

expected to take a liberal approach to construing pro se claims, liberality does not allow a court

to ignore Congress’ decision to bar successive uncertified claims under § 2255(h). See Burton v.

Stewart, 549 U.S. 147, 152 (2007) (per curiam) (district court lacked jurisdiction to hear

successive habeas claim because the prisoner did not obtain an order from the appropriate court

of appeals).

        For the foregoing reasons, the Court finds that Defendant is not entitled to the requested



        4
         While the certification bar of § 2255(h) and the time bar of § 2255(f) might appear to be
alternative grounds for resolving a habeas petition, the Supreme Court has admonished federal
courts to resolve habeas petitions on purely procedural grounds like § 2255(h) without reaching
more substantive issues such as the Teague question that would arise under § 2255(f). In
Lambrix v. Singletary, 520 U.S. 518 (1997), the Supreme Court chastised the Eleventh Circuit
for reaching the Teague question of whether Espinosa v. Florida, 505 U.S. 1079 (1992) applied
retroactively to cases on collateral review without first considering whether a procedural bar (to
wit, Florida’s requirement that Espinosa claims be preserved on direct appeal) barred the
petitioner’s habeas claim. While the Court’s opinion in Lambrix invoked the “adequate and
independent state grounds” doctrine (which would not apply here, as Defendant was convicted
and sentenced in federal court), it also relied heavily on the constitutional avoidance doctrine,
noting that “constitutional questions are generally to be avoided, and . . . the Teague inquiry
requires a detailed analysis of federal constitutional law.” 520 U.S. at 524. It is true that §
2255(h) would require the D.C. Circuit to apply Teague to determine if Alleyne or Peugh applied
retroactively. But § 2255(f) requires this Court to apply Teague, which this Court will not do if a
claim is procedurally barred as this one is.
                                                  5
relief. Defendant filed her petition under 18 U.S.C. § 3852(c), which requires one of three factual

or legal predicates, of which Defendant has alleged none. If Defendant’s motion is construed as a

habeas petition under 28 U.S.C. § 2255, it is barred as an uncertified successive petition.

Furthermore, the Court concludes that a hearing in this matter is unnecessary because the record

conclusively shows that Defendant’s motion is uncertified. See 28 U.S.C. § 2255(b) (no hearing

required where “the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief”). Accordingly, Defendant’s [240] Motion to Correct a Sentence

Pursuant to 18 U.S.C. § 3852(c) is DENIED. An appropriate Order accompanies this

Memorandum Opinion.


                                                        /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     UNITED STATES DISTRICT JUDGE




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