Opinion
21-cv-245-PB
05-20-2021
Allah Burman v. Robert Hazelwood, Warden, Federal Correctional Institution Berlin, New Hampshire
cc: Allah Burman, pro se
cc: Allah Burman, pro se
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE
Allah Burman, who is proceeding pro se and is an inmate at the Federal Correctional Institution, Berlin, New Hampshire (“FCI Berlin”), has filed a petition for a writ of habeas corpus, challenging the validity of his conviction and sentence, imposed pursuant to a federal prosecution in the District of Maryland. See United States v. Burman, Criminal No. L-01-0115 (D. Md.). The petition is before this court for preliminary review, to determine whether Burman's claims are facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 Cases (“§ 2254 Rules”); § 2254 Rule 1(b) (authorizing court to apply § 2254 Rules to § 2241 petitions); Rule 4 of Rules Governing Section 2255 Cases; LR 4.3(d)(4)(A). Burman also filed a motion pursuant to 28 U.S.C. § 2243 (Doc. No. 3).
Burman does not cite a statutory basis for his petition, which was initially designated as a petition under 28 U.S.C. § 2241.
Background
Burman was convicted on January 29, 2003, on charges of possessing cocaine with intent to distribute in violation of 18 U.S.C. § 841(a)(1) and conspiring to distribute cocaine in violation of 18 U.S.C. § 846. Burman v. United States, 2009 WL 2366573, at *1 (D. Md. July 29, 2009). He was sentenced to a term of imprisonment of 360 months to be followed by 10 years of supervised release. Id. He appealed his conviction and sentence. His conviction was affirmed, while his sentence was vacated and the case was remanded for resentencing under United States v. Booker, 543 U.S. 220 (2005). Id.
He was resentenced on May 17, 2006, with an amended judgment of 360 months on each conviction, to be served concurrently, and to be followed by 10 years of supervised release. Id. He filed a notice of appeal, and the Fourth Circuit affirmed his conviction and sentence. United States v. Burman, 225 Fed.Appx. 198 (4th Cir. 2007).
Thereafter, Burman filed successive motions for habeas corpus relief under 28 U.S.C. § 2255. By 2011, Burman had filed eight motions under § 2255, all of which had been denied. Burman v. Perdue, 2015 WL 1588069, at *1 (N.D. W.Va. Apr. 9, 2015). In each case, the court denied a certificate of appealability. Id. In 2014, Burman filed a petition under § 2241 in the Northern District of West Virginia, where he was incarcerated, which the court found to be inappropriate because he again challenged the validity of his sentence. Id. at *3. The petition was denied, and the case was dismissed. Id. That decision was affirmed on appeal. Burman v. Perdue, 680 Fed.Appx. 221 (4th Cir. 2017).
On September 28, 2020, Burman filed a petition for habeas corpus relief in this court. Burman v. United States, 20-cv-982-JD. In that petition, Burman challenged disciplinary proceedings at FCI Berlin (New Hampshire) that lead to him losing more than one year of his good conduct credit. Id., doc. no. 1. Although Burman did not identify the statutory basis for his petition, it was construed as a petition under § 2241.
Burman filed “Ex Parte Petition for Writ of Habeas Corpus” in that case on March 19, 2021. In the new petition, Burman reiterated the grounds for habeas relief that he alleged in his original petition but also added different allegations and claims. The Ex Parte Petition for Writ of Habeas Corpus was docketed as a separate case to address the new claims that Burman raised. Burman v. United States, 21-cv-245-PB.
In the new claims raised in the Ex Parte Petition for Writ of Habeas Corpus, Burman alleges that he was arrested on May 22, 2001, for violating a condition of release rule and suggests that that incident was improperly considered for purposes of sentencing. He alleges that he is in custody “by direction and findings of Timothy Johnson, United States Probation Officer, for an alleged - mandatory release condition-violation.” He alleges that he was not given notice of the violation, was not given a hearing, and was not informed of the decision made by the board.
He challenges his conviction on drug charges on the ground that he “does not Come within the Class of Persons whom the Controlled Substance Act was created for - Practitioners, Physicians, dentists, veterinarians, scientific investigators, Pharmacies, hospitals, or other Persons licensed or register. See, 21 U.S.C. 802 number (21).” He contends that his conviction, therefore, is null and void ab initio.
On May 12, 2021, Burman filed a motion pursuant to 28 U.S.C. § 2243 to require the warden to respond to his petition. He argues that the warden should be required to respond within three days and that a hearing on his petition should be held within five days. He further argues that the procedure he requests is necessary so that he can be released from detention.
Discussion
I. Preliminary Review of the Petition
Under Rule 4 (Governing Section 2254 and 2255 Cases), the court must examine a petition for habeas corpus relief. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” Rule 4(b) (Rules Governing Section 2255 Cases). Therefore, the court must dismiss the petition if it appears to be legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). Because of Burman's pro se status, the court construes his petition liberally. Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
A. Which Statute Applies
As is noted above, Burman did not designate a statutory basis for his petition. In general, a federal prisoner who challenges the validity or length of his sentence (or the conviction that lead to his sentence) must file a petition under § 2255 in the sentencing court. Goncalves v. Spaulding, 470 F.Supp.3d 69. 71-72 (D. Mass. 2020). On the other hand, a petition under § 2241 generally addresses the execution or manner in which the sentence is served and must be brought in the district where the prisoner is detained. Id. at 72.
In this case, Burman is challenging the validity of his conviction and sentence. Therefore, ordinarily he would have to proceed under § 2255 in the court where he was sentenced, which is the District of Maryland.
B. Savings Clause
A narrow exception to the general rule applies under the savings clause, § 2255(e), when § 2255 “is inadequate or ineffective to test the legality of his detention.” That rare situation occurs “only when, in a particular case, the configuration of section 2255 is such as to deny a convicted defendant any opportunity for judicial rectification.” Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008); see also, e.g., Ham v. Breckon, 994 F.3d 682, 684-85 (4th Cir. 2021). The savings clause does not provide jurisdiction to consider claims under § 2241, however, to avoid the bar under § 2255 for second or successive petitions. Id. at 98; United States v. Barrett¸ 178 F.3d 34, 50-52 (1st Cir. 1999).
A petitioner may challenge the validity of his conviction through the savings clause when an intervening change in the law, which is retroactive, applies to the petitioner's case so that under the new law he is actually innocent. McCormick v. Butler, 977 F.3d 521, 525 (7th Cir. 2020); see also Trenkler, 536 F.3d at 99 (“Most courts have required a credible allegation of actual innocence to access the savings clause.”); In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997) (savings clause jurisdiction exists in circumstances where intervening change in the law decriminalized conduct underlying petitioner's conviction, and he had no other opportunity to pursue his claim). In other words, the savings clause is available for petitioners asserting statutory claims based on new binding precedent, previously unavailable to them, that narrows the scope of a criminal statute in a manner that would have rendered them not guilty of criminal conduct. See Sustache-Rivera v. United States, 221 F.3d 8, 16 n.14 (1st Cir. 2000).
As is provided in the background section, Burman has had many opportunities to challenge the validity of his conviction and sentence and has filed multiple petitions under § 2255. See § 2255(h). Nothing in this case suggests that the savings clause would apply here to allow Burman to proceed under § 2241. Burman provides no credible basis to find that he is actually innocent. His challenge to his sentence is based on the revocation of his release in 2001, which he contends was considered for sentencing. That issue is not based on a new legal standard, previously unavailable to Burman.
Burman's claim based on 21 U.S.C. § 802(21) is frivolous. That provision merely defines the term “practitioner” as used in the Controlled Substances Act and does not exclude Burman from the coverage of the Act, as he contends.
C. Jurisdiction
This court lacks jurisdiction to consider Burman's petition under § 2255. § 2255(e). As provided above, § 2255(e) does not provide a basis for Burman to proceed under § 2241. Therefore, the petition should be dismissed for lack of jurisdiction.
II. Motion under § 2243
Burman asks the court to order the warden's response to his petition and to hold a hearing on the petition. The court lacks jurisdiction to consider his petition. Section § 2243 does not apply in the circumstances of this case. Therefore, the motion should be denied.
Conclusion
For the foregoing reasons, the district judge should: 1) dismiss Burman's petition (Doc. No. 1) due to a lack of jurisdiction, without prejudice to Burman's ability to seek permission in the Fourth Circuit to file a successive § 2255 motion in the District of Maryland, and 2) deny the motion for relief under § 2243(Doc. No. 3).
Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed.R.Civ.P. 72(b)(2) . The fourteen-day period may be extended upon motion. Failure to file objections within the specified time waives the right to appeal the district court's order. Santos-Santos v. Torres Centeno, 842 F.3d 163, 168 (1st Cir. 2016).