Opinion
1:20-cv-119
10-12-2021
ROGELIO TORRES, Petitioner v. BRADLEY TRATE, Respondent
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Richard A. Lanzillo United States Magistrate Judge
I. Recommendation
It is respectfully recommended that this Court lacks jurisdiction over the petition for a writ of habeas corpus filed by federal prisoner Rogelio Torres (Petitioner) pursuant to 28 U.S.C. § 2241. It is further recommended that Petitioner's petition be transferred to the Court of Appeals for the Eleventh Circuit for treatment as a request to file a second or successive motion to vacate pursuant to 28 U.S.C. § 2255.
Petitioner is incarcerated at FCI-McKean, a federal correctional institution located within the territorial boundaries of the Western District of Pennsylvania. The Warden of FCI-McKean is the Respondent in this action.
II. Report
A. Background
On February 28, 2011, Petitioner pleaded guilty in the United States District Court for the Middle District of Florida (the “sentencing court”) to conspiring to commit, and aiding and abetting, Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2, and aiding and abetting the brandishing of a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. ECF No. 11-2 at 1. On August 29, 2011, the sentencing court sentenced Petitioner to a term of incarceration of 192 months followed by five years of supervised release. Id. The Court of Appeals for the Eleventh Circuit affirmed Petitioner's conviction and sentence. See United States v. Torres, 504 Fed.Appx. 810 (11th Cir. 2013).
Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255 in the sentencing court on June 5, 2016. See United States v. Torres, 2016 WL 3536839 (M.D. Fla. June 28, 2016). The sentencing court denied Petitioner's motion on June 28, 2016. See id.
The instant petition ensued. In his petition, Petitioner contends that the United States Supreme Court's 2019 decision in United States v. Davis, 139 S.Ct. 2319 (2019) created anew and retroactive rule of constitutional law which invalidated his conviction and sentence under 18 U.S.C. § 924(c)(1). In response, Respondent maintains that Petitioner's petition must be dismissed for lack of jurisdiction because Petitioner has a direct path to relief available through § 2255. ECF No. 11. This matter is fully briefed and ripe for disposition.
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
B. Discussion
For federal prisoners, “[t]he ‘core' habeas corpus action is a prisoner challenging the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid.” McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010); see also Cardona v. Bledsoe, 681 F.3d 533, 535-38 (3d Cir. 2012). “Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer federal jurisdiction over habeas petitions filed by federal inmates.” Cardona, 681 F.3d at 535. Section 2255 motions must be filed in the federal district court that imposed the conviction and sentence the prisoner is challenging. 28 U.SC. § 2255(a). In contrast, a habeas corpus action pursuant to § 2241 must be brought in the custodial court - i.e., the federal district court in the district in which the prisoner is incarcerated. Bruce v. Warden Lewisburg USP, 868 F.3d 170, 178 (3d Cir. 2017).
Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners may challenge the validity of their conviction or sentence on collateral review. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (emphasis added). By enacting § 2255, Congress provided “[a] new remedial mechanism” to “replace[] traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, imposed in violation of the Constitution or laws of the United States.” Boumediene v. Bush, 553 U.S. 723, 774 (2008) (internal quotation marks omitted). The statute's “sole purpose was to minimize the difficulties encountered in [traditional] habeas corpus hearings by affording the same rights in another and more convenient forum.” Hayman, 342 U.S. at 219; see also Hill v. United States, 368 U.S. 424, 427, 428 n.5 (1962). Thus, “a federal prisoner's first (and most often only) route for collateral review of his conviction or sentence is under § 2255.” Bruce, 868 F.3d at 178.
As for § 2241, that statute “confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.” Cardona, 681 F.3d at 535 (internal quotations and citations omitted) (emphasis added); Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005) (defining “execution of' the sentence to mean the manner in which it is “put into effect” or “carr[ied] out”). Two types of claims may ordinarily be litigated in a § 2241 proceeding. First, a prisoner may challenge conduct undertaken by the Federal Bureau of Prisons (the “BOP”) that affects the duration of his custody. For example, a prisoner can challenge the manner in which the BOP is computing his federal sentence, see, e.g, Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990), or the constitutionality of a BOP disciplinary action that resulted in the loss of good conduct sentencing credits, Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008). Secondly, a prisoner can challenge BOP conduct that “conflict[s] with express statements in the applicable sentencing judgment.” Cardona, 681 F.3d at 536; Woodall, 432 F.3d at 243. The prisoner must “allege that [the] BOP's conduct was somehow inconsistent with a command or recommendation in the sentencing judgment.” Cardona, 681 F.3d at 536-37 (noting that the phrase “execution of the sentence” includes claims “that the BOP was not properly ‘putting into effect' or ‘carrying out' the directives of the sentencing judgment.”) (internal quotations and alterations omitted).
Petitioner's claims in the instant § 2241 action do not fall into either of these categories. Rather than attacking the execution of his sentence, Petitioner contends that his conviction was retroactively invalidated by the Supreme Court's decision in Davis. As recounted above, § 2255 ordinarily prohibits a court from entertaining a § 2241 petition filed by a federal prisoner challenging the validity of his underlying conviction or sentence. There is, however, one important statutory exception: where it “appears that the remedy by [§ 2255 motion] is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Petitioner relies on this provision, commonly referred to as § 2255's “savings clause, ” in the instant action. Bruce, 868 F.3d at 174, 178-79.
Critically, however, the Court of Appeals for the Third Circuit has only recognized one circumstance in which § 2255's remedy has been deemed “inadequate or ineffective”: when a prisoner “had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate.” In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). In its recent decision in Bruce, the Court set forth the two conditions that a federal prisoner must satisfy to take advantage of § 2255's savings clause under Dorsainvil. “First, a prisoner must assert a claim of actual innocence on the theory that he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision and our own precedent construing an intervening Supreme Court decision - in other words, when there is a change in statutory caselaw that applies retroactively in cases on collateral review.” Bruce, 868 F.3d at 180 (internal quotations omitted). “[S]econd, the prisoner must be ‘otherwise barred from challenging the legality of the conviction under § 2255.”' Id. (quoting U.S. v. Tyler, 732 F.3d241, 246 (3d Cir. 2013)).
In the instant case, Petitioner cannot satisfy the second of these conditions because he has a direct path to relief available through 28 U.S.C. § 2255. Petitioner asserts - and the government does not contest - that Davis presents a new, retroactive rule of constitutional law. As such, Section 2255 provides a direct avenue for him to seek relief:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain ... 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)(2). In other words, Petitioner has recourse to seek leave (as set forth in 28 U.S.C. § 2244) from the United States Court of Appeals for the Eleventh Circuit to file a second or successive motion under § 2255(h) in the sentencing court. Because Petitioner has a potentially viable path to seek relief by way of Section 2255, he cannot demonstrate that a Section 2255 motion would be ineffective or inadequate, as is required to bring such a claim pursuant to Dorsenvail's “savings clause.” See, e.g., Lanter v. Warden Lewisburg USP, 844 Fed.Appx. 489 (3d Cir. 2021). For these reasons, this Court lacks subject matter jurisdiction over his Davis claim.
Whenever a civil action is filed in a court that lacks jurisdiction, “the court shall, if it is in the interests of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed.” 28 U.S.C. § 1631. Consistent with this provision, the Court should, in the interests of justice, transfer Petitioner's petition to the Court of Appeals for the Eleventh Circuit for a determination as to whether Petitioner's petition may be treated as a request to file a second or successive § 2255 motion based on his Davis argument.III. Conclusion
The Court should transfer this matter under § 1631 rather than dismiss it to preserve Petitioner's filing date for statute of limitations purposes. See, e.g., Gray v. Bradley, 2020 WL 969620, at *3 (M.D. Pa. Feb. 28, 2020).
For the foregoing reasons, it is respectfully recommended that this Court lacks jurisdiction over Petitioner's § 2241 petition. It is further recommended that this matter be transferred to the Court of Appeals for the Eleventh Circuit for treatment as a request to file a second or successive motion to vacate pursuant to 28 U.S.C. § 2255.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).