Opinion
Case No. 1:18-cv-335
04-21-2020
SEBASTIAN FERRELL, Petitioner v. WARDEN OF FCI MCKEAN, Respondent
UNITED STATES DISTRICT JUDGE SUSAN PARADISE BAXTER REPORT AND RECOMMENDATION I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus filed by federal prisoner Sebastian Ferrell (Petitioner) pursuant to 28 U.S.C. § 2241 be dismissed for lack of jurisdiction. II. Report
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.
A. Background
On October 28, 2014, the government filed an indictment in the United States District Court for the Western District of New York (the "sentencing court") charging Petitioner and three co-defendants with: conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349 (Count 1); bank fraud in violation of 18 U.S.C. § 1344 (Count 2); access device fraud in violation of 18 U.S.C. § 1029(a)(2) (Count 4); and aggravated identity theft in violation of 18 U.S.C. § 1028(a)(1) (Count 8). Ferrell v. United States, 2018 WL 1746402, at *1 (W.D. N.Y. Apr. 11, 2018). On December 3, 2015, Petitioner pled guilty to Counts 1 and 8 of the indictment pursuant to a plea agreement. Id. In the plea agreement, Petitioner and the government stipulated that three specific offense level enhancements under the sentencing guidelines would apply: (1) the 12-level increase based on the amount lost exceeding $250,000, U.S.S.G. § 2B1.1(b)(1)(G); (2) the two-level increase based on there being more than ten victims, U.S.S.G. § 2B1.1(b)(2)(A); and (3) the two-level increase based on the use of an authentication feature, U.S.S.G. § 2B1.1(b)(11)(A)(ii). Id. at *2.
On March 3, 2016, the sentencing court sentenced Petitioner to a 53-month term of imprisonment on Count 1 and a consecutive 24-month term of imprisonment on Count 8, amounting to a total sentence of 77-months incarceration. Id. at *3. Petitioner did not file a direct appeal of his conviction or sentence.
On October 13, 2016, Petitioner filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Id. Petitioner argued, among other things, that the "three enhancements Petitioner agreed to should not have been applied." Id. The sentencing court denied Petitioner's § 2255 motion, noting that "Petitioner was sentenced within the parameters set forth in the Plea Agreement" and "the record demonstrates that Petitioner did not receive ineffective assistance of counsel with respect to the Plea Agreement and his decision to plead guilty, both of which were knowing, voluntary, and intelligent." Id. at *6. The Court of Appeals for the Second Circuit affirmed. Ferrell v. United States, No. 18-1209 (2nd Cir. Sept. 10, 2018).
Shortly thereafter, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner relies on the United States Supreme Court's recent decision in Nelson v. Colorado, 137 S. Ct. 1249 (2017), to argue that he did not meet the requirements of U.S.S.G. § 2B1.1(b)(2)(A) and should not have received a two-level increase based on that enhancement. This matter is fully briefed and ripe for disposition.
In Nelson v. Colorado, the Supreme Court held unconstitutional a Colorado statute that had required defendants whose convictions had been reversed or vacated to prove their innocence by clear and convincing evidence to obtain a refund of any costs, fees, and restitution paid in conjunction with the invalid conviction. See Nelson, 137 S. Ct. at 1252, 1254.
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 the sentencing court erred in applying a sentencing enhancement. 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). This provision, commonly referred to as § 2255's "savings clause," forms the lone potential basis for Petitioner's claims in the instant case. Bruce, 868 F.3d at 174, 178-79.
Since the amendments to AEDPA were enacted in 1996, the Court of Appeals for the Third Circuit has recognized only 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 Dorsainvil, the inmate-petitioner, Ocsulis Dorsainvil, had been convicted of using a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) despite the fact that he did not "use" the gun; it was merely present in the car from which the drugs were sold. After Dorsainvil had already litigated his initial (unsuccessful) § 2255 motion, the United States Supreme Court decided Bailey v. United States, 516 U.S. 137 (1995), in which it held that the "use" prong of § 924(c)(1) applied only to "active employment of the firearm," as opposed to mere possession. Bailey, 516 U.S. at 144. Dorsainvil applied to the Third Circuit for permission to file a second or successive § 2255 petition, arguing that Bailey had rendered noncriminal the conduct for which he had been convicted. However, as noted above, § 2255 requires that a second or successive § 2255 motion be based on either "newly discovered evidence" or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." See 28 U.S.C. § 2255(h). Because Bailey involved a new statutory rule, rather than "a new rule of constitutional law," the Third Circuit had no choice but to deny his request. Dorsainvil, 119 F.3d at 247-48 (quoting 28 U.S.C. § 2255) (emphasis added). The Court lamented, however, that "Dorsainvil [did] not have and, because of the circumstance that he was convicted for a violation of § 924(c)(1) before the Bailey decision, never had an opportunity to challenge his conviction as inconsistent with the Supreme Court's interpretation of § 924(c)(1)." Id. at 250-51. Deeming it a "complete miscarriage of justice to punish a defendant for an act that the law does not make criminal," the Court concluded that § 2255 was "inadequate or ineffective to test the legality of [Dorsainvil's] detention." Id. at 251 (internal quotations omitted; brackets in original). Thus, "in the unusual situation where an intervening change in statutory interpretation runs the risk that an individual was convicted of conduct that is not a crime, and that change in the law applies retroactively in cases on collateral review," a petitioner "may seek another round of post-conviction review under § 2241." Bruce, 868 F.3d at 179.
In Bruce, the Court of Appeals for the Third Circuit set forth the two conditions that a federal prisoner must satisfy in order 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.3d 241, 246 (3d Cir. 2013)).
In the instant case, Petitioner has failed to satisfy the first of these conditions. Petitioner does not claim that he was convicted of conduct that was subsequently decriminalized by a change in the law - that is, that he is now actually innocent of conspiracy to commit bank fraud and aggravated identity theft, the crimes to which he pled guilty. Rather, he is challenging the applicability of a sentencing enhancement based upon an intervening change in substantive law. Courts in this Circuit, including the Court of Appeals, have repeatedly held that district courts lack jurisdiction to consider such claims under § 2241. See, e.g., Scott v. Shartle, 574 Fed. Appx. 152, 155 (3d Cir. 2014) ("[B]ecause [petitioner] is challenging his career offender designation and is not claiming that he is now innocent of the predicate offense, he does not fall within the 'safety valve' exception created in In re Dorsainvil and cannot proceed under § 2241.") (citing Okereke v. United States, 307 F.3d 117, 120-21 (3d Cir. 2002)); United States v. Brown, 456 Fed. Appx. 79, 81 (3d Cir. 2012) ("We have held that § 2255's 'safety valve' applies only in rare circumstances, such as when an intervening change in the statute under which the petitioner was convicted renders the petitioner's conduct non-criminal. [Petitioner] has not satisfied that standard here, as he makes no allegation that he is actually innocent of the crime for which he was convicted, but instead asserts only that he is 'innocent' of [a sentencing enhancement]."); McGee v. Ebbert, 2019 WL 6339898, at *2 (M.D. Pa. Nov. 1, 2019) ("The Third Circuit has consistently held that the challenges of federal inmates attacking sentencing enhancements cannot be raised by means of a Section 2241 petition and a district court does not have Section 2241 jurisdiction to reexamine the decisions of the federal sentencing court.") (collecting cases). Moreover, courts have consistently held that the Nelson decision has no bearing on the application of sentencing enhancements. See, e.g., Burton v. United States, 2019 WL 6893785, at *3 (M.D. Pa. Dec. 18, 2019) ("The decision in Nelson, however, has no bearing on the application of [the sentencing enhancement at issue].") (citing Walker v. United States, 2019 WL 4386742, at *3 (S.D. W. Va. Aug. 22, 2019) (noting that the Nelson decision "does not touch on sentencing considerations, sentencing guidelines, or relevant conduct in sentencing")). See also United States v. Davis, 2019 WL 1584634, at *3 (M.D. Pa. Apr. 12, 2019) ("The Court is entirely at a loss as to how Defendant reaches his conclusion [that his sentencing enhancements were improper] upon reading the Supreme Court's decision in Nelson, which pertains only to refunding costs, fees, and restitution when a defendant is exonerated after a wrongful conviction. Nothing in the Court's Nelson opinion addresses the enhancements Defendant now challenges.").
Based on the foregoing, Petitioner has failed to demonstrate that his claim falls within the narrow Dorsenvail exception or that the remedy provided by § 2255 would otherwise be inadequate or ineffective. As such, his § 2241 petition must be dismissed for lack of jurisdiction. III. Conclusion
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be dismissed, with prejudice. IV. Notice
Because "[f]ederal prisoner appeals from the denial of a habeas corpus proceeding are not governed by the certificate of appealability requirement," the Court need not make a certificate of appealability determination in this matter. Williams v. McKean, 2019 WL 1118057, at *5 n. 6 (W.D. Pa. Mar. 11, 2019) (citing United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012)); 28 U.S.C. § 2253(c)(1)(B).
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). Dated: April 21, 2020
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge