Opinion
9:18-cv-1188 (GLS/ATB)
09-20-2019
FRANKIE SANCHEZ, Petitioner, v. WARDEN VERONICA FERNANDEZ (FCI RAY BROOK), Respondent.
APPEARANCES: FOR THE PETITIONER: HON. LISA A. PEEBLES FEDERAL PUBLIC DEFENDER 4 Clinton Square, 3rd Floor Syracuse, N.Y. 13202 FOR THE RESPONDENT: HON. GRANT C. JAQUITH UNITED STATES ATTORNEY James T. Foley U.S. Courthouse 445 Broadway, Room 218 Albany, N.Y. 12207 OF COUNSEL: JAMES P. EGAN COURTENAY K. MCKEON Assistant Federal Public Defenders THOMAS SPINA, JR. Assistant United States Attorney
APPEARANCES:
FOR THE PETITIONER:
HON. LISA A. PEEBLES
FEDERAL PUBLIC DEFENDER
4 Clinton Square, 3rd Floor
Syracuse, N.Y. 13202 FOR THE RESPONDENT:
HON. GRANT C. JAQUITH
UNITED STATES ATTORNEY
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, N.Y. 12207
OF COUNSEL:
JAMES P. EGAN
COURTENAY K. MCKEON
Assistant Federal Public
Defenders THOMAS SPINA, JR.
Assistant United States Attorney
Gary L. Sharpe Senior District Judge
ORDER
On May 2, 2019, Magistrate Judge Andrew T. Baxter issued a Report-Recommendation (R&R), which recommends that Frankie Sanchez's motion to vacate pursuant to 28 U.S.C. § 2241, (Dkt. No. 1), be denied and dismissed without prejudice for lack of jurisdiction and that a certificate of appealability be denied. (Dkt. No. 9 at 16.) Pending before the court are Sanchez's objections to the R&R. (Dkt. No. 10.)
Sanchez objects to "two analytical flaws" in the R&R: (1) that the holding in Burrage v. United States, 571 U.S. 204 (2014) is not retroactive and (2) that Burrage is inapplicable because Sanchez was not subject to 21 U.S.C. § 841(b). (Dkt. No. 10 at 2, 3, 8.) Given that these objections are reiterations of arguments made in Sanchez's initial motion papers, (Dkt. No. 1 at 2 & n.1, 10-11), they are properly classified as general objections and trigger review for clear error only. See Almonte v. N.Y. State Div. of Parole, No. Civ. 904CV484, 2006 WL 149049, at *5-6 (N.D.N.Y. Jan. 18, 2006).
Even if it was error to rely on the Fourth Circuit's supposed finding that Burrage is not retroactive, (R&R at 10-11 (citing Ashbaugh v. United States, 736 F. App'x 435 (4th Cir. 2018))), the court nonetheless arrives at the same conclusion given that there is no clear error with the R&R's finding that Burrage is inapplicable here because Sanchez was not convicted under 21 U.S.C. § 841(b)(1)(C), (R&R at 13 (citing Torres Rodriguez v. Johnson, No. 17-CV-1215, 2017 WL 9808666, at *2 (W.D. La. Dec. 29, 2017), adopted by 2018 WL 3351124 (W.D. La. July 6, 2018))).
It does not appear that the unpublished, per curiam opinion in United States v. Ashbaugh, 736 F. App'x 425 (4th Cir. 2018) is germane to the underlying circumstances here. And, in any event, the court tends to agree with the Sixth Circuit's stance on the issue:
Substantive decisions that narrow the scope of a criminal statute by interpreting its terms apply retroactively to cases on collateral review. Burrage fits that bill: because but-for causation is a stricter requirement than, for example, the contributing-cause rule rejected in Burrage, some conduct punished by 21 U.S.C. § 841(b)(1) pre-Burrage is no longer covered post-Burrage.
Accordingly, it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 9) is ADOPTED in its entirety; and it is further
ORDERED that Sanchez's motion is DENIED and his application for a writ of habeas corpus under 28 U.S.C. § 2241 is DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that no certificate of appealability shall issue pursuant to 28 U.S.C. § 2253(c)(2); and it is further
ORDERED that the Clerk provide a copy of this Order to the parties in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
September 20, 2019
Albany, New York
/s/_________
Gary L. Sharpe
U.S. District Judge
Harrington v. Ormond, 900 F.3d 246, 249 (6th Cir. 2018) (internal quotation marks and citations omitted); see Santillana v. Upton, 846 F.3d 779, 783-84 (5th Cir. 2017); Krieger v. United States, 842 F.3d 490, 499-500 (7th Cir. 2016); Ragland v. United States, 784 F.3d 1213 (8th Cir. 2015).