Opinion
1:19-cv-216
07-06-2021
EFRAIM FONTANEZ, Petitioner v. FCI MCKEAN WARDEN, 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 the petition for a writ of habeas corpus filed by federal prisoner Efraim Fontanez (Petitioner) pursuant to 28 U.S.C. § 2241 be dismissed for lack of jurisdiction.
At the time that he filed his petition, Petitioner was 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 July 10, 1989, a jury in the United States District Court for the Eastern District of Pennsylvania (the “sentencing court”) found Petitioner guilty of conspiracy to distribute cocaine, distribution of cocaine, distribution of cocaine within 1, 000 feet of a school, conducting a continuing criminal enterprise, and unlawful use of a telephone, in violation of 21 U.S.C. §§ 846, 841(a)(1), 845(a), and 843(b). ECF No. 11-1. On November 8, 1989, the sentencing court sentenced Petitioner to a term of lifetime imprisonment. Id. at 3. In so doing, the sentencing court classified Petitioner as a career offender under the United States Sentencing Guidelines, calculated his offense level as 37, and determined that the sentencing range for the criminal enterprise count was 360 months to life. Id. See also ECF No. 11-2. On October 18, 1990, the Court of Appeals for the Third Circuit affirmed Petitioner's conviction and sentence. See Appeal of Fontanez, 919 F.2d 134 (3d Cir. Oct. 18, 1990).
On January 3, 1996, Petitioner filed a motion with the trial court to vacate his sentence pursuant to 28 U.S.C. § 2255. See ECF No. 11-3. In addition to alleging ineffective assistance of trial counsel, Petitioner argued that “the imposition of a life sentence under the Sentencing Guidelines was unwarranted because some of the criminal conduct with which he was charged in the indictment occurred prior to November 2, 1987, the effective date of the Sentencing Guidelines.” ECF No. 11-2 at 8. Id. The sentencing court denied relief, noting that this argument had already been considered and rejected by the Court of Appeals on direct appeal. Id. at 9.
Petitioner filed a second § 2255 motion on November 22, 1999, and a third on May 19, 2000. ECF No. 11-4 and 11-5. The sentencing court denied both motions, explaining that they amounted to second or successive petitions under 28 U.S.C. § 2255(h) and that the court could not consider any such motion without prior authorization from the Third Circuit. ECF No. 11-6.
In 2011, Petitioner filed a petition for a writ of audita querela under 28 U.S.C. § 1651. See United States v. Fontanez, 462 Fed.Appx. 147 (3d Cir. 2012). Petitioner argued that the sentencing court had improperly imposed a mandatory life sentence and that his conviction should be vacated in light of the United States Supreme Court's decision in Richardson v. United States, 526 U.S. 813 (1999). The Court of Appeals rejected his petition, holding that “[t]he means to collaterally challenge a federal conviction or sentence is through a motion pursuant to 28 U.S.C. § 2255, not a petition for a writ of audita querela.” Id. at 148 (internal quotation omitted).
In Richardson, the Court held that a jury must be instructed to unanimously agree to the specific “violations” that support a continuing criminal enterprise offense. Fontanez, 462 Fed.Appx. at 147 (citing Richardson, 526 U.S. 813).
The instant petition ensued. In his petition, Petitioner argues that the sentencing court unjustifiably and illegally enhanced his sentence under Section 2D1(a) of the Sentencing Guidelines after finding that another individual died while attempting to smuggle heroin to Petitioner in prison. ECF No. 3 at 2. Citing the United States Supreme Court's decision in Burrage v. United States, 571 U.S. 204 (2014), Petitioner maintains that the determination as to whether a death resulted from his criminal drug distribution should have been submitted to the jury. Id. at 3. Because a jury was never asked to find, beyond a reasonable doubt, that Petitioner's distribution resulted in another individual's death, Petitioner asserts that he is “actually innocent” of the sentencing enhancement and that his sentence should be vacated. Id. at 3-5. In response, Respondent maintains that Petitioner's petition must be dismissed for lack of jurisdiction. ECF No. 11. This matter is fully briefed and ripe for disposition.
In Burrage, the Court held that the “death results” sentencing enhancement in 21 U.S.C. § 841(b)(1) “is an element that must be submitted to the jury and found beyond a reasonable doubt.” 571 U.S. at 210.
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).
Section 2241 petitions must be filed in the district in which the prisoner is incarcerated because:
[t]he prisoner must direct his [§ 2241] petition to “the person who has custody over him.” § 2242; see also Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Longstanding practice under this immediate custodian rule “confirms that in habeas challenges to present physical confinement... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). And under the statute's jurisdiction of confinement rule, district courts may only grant habeas relief against custodians “within their respective jurisdictions.” § 2241(a); see also Braden, 410 U.S. at 495, 93 S.Ct. 1123 (“[T]he language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian.”).Bruce, 868 F.3d at 178.
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 under the Sentencing Guidelines. 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 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 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 its recent decision 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 retroactively innocent of the underlying criminal enterprise. Rather, he is challenging the applicability of a sentencing enhancement. Although the Third Circuit has yet to address the issue in a precedential opinion, 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., 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). Indeed, courts have consistently reached this conclusion with respect to the precise Burrage claim at issue here. See, e.g., Walters v. Warden Fairton FCI, 674 Fed.Appx. 117, 119 (3d Cir. 2017) (holding that claims based on Burrage “do not fall within the ‘safety valve' definition and may not be raised in § 2241”); Lewis v. Warden Allenwood FCI, 719 Fed.Appx. 92, 94-95 (3d Cir. 2017) (affirming that, because “[t]he Supreme Court's decision in Burr age did not decriminalize the conduct for which [the petitioner] was convicted, ” the district court “correctly concluded that [he] could not resort to § 2241 to raise his legal claim”); Brewer v. Moser, 2020 WL 7773758 (M.D. Pa. Dec. 30, 2020) (noting that “sentencing enhancement challenges, ” including those invoking Burrage, “are insufficient to invoke Section 2241.”); Horton v. Warden, FCI McKean, 2020 WL 1532289, at *8 (W.D. Pa. Mar. 31, 2020) (dismissing § 2241 petition for lack of jurisdiction because petitioner's “Burrage claim is not premised upon the theory he is being detained for conduct that has been rendered non-criminal by an intervening decision of statutory construction issued by the Supreme Court. Rather, his challenge is only to the term of the sentence [he's] serving.”) (emphasis in original). Because Petitioner is not alleging that he is being detained for conduct that has been rendered non-criminal by an intervening decision of statutory construction issued by the United States Supreme Court, this action does not fall within § 2255 's savings clause and this Court lacks jurisdiction to consider his claims.
As an aside, the fact that Petitioner must apply to the Court of Appeals for the Third Circuit for authorization to file a second or successive § 2255 motion does not, in and of itself, render § 2255 “inadequate or ineffective.” Dorsainvil, 119 F.3d at 251. As explained by the Third Circuit Court of Appeals: “We do not suggest that § 2255 would be ‘inadequate or ineffective' so as to enable a second petitioner to invoke § 2241 merely because that petitioner is unable to meet the stringent gatekeeping requirements of [AEDPA's amendments to] § 2255. Such a holding would effectively eviscerate Congress's intent in amending § 2255.” Id. See also Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (“Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255.”)
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be dismissed, with prejudice.
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).
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).