Opinion
CIV-21-386-D
05-06-2021
JORGE SOLANO-MORETA, Petitioner, v. S. R. GRANT, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Jorge Solano-Moreta, a federal prisoner proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). United States Chief District Judge Timothy D. DeGiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). On initial review, the Court should DISMISS the case for lack of jurisdiction.
I. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to “summarily dismiss [a] petition without ordering a responsive pleading, ” Mayle v. Felix, 545 U.S. 644, 656 (2005), “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct.
The district court may apply any or all” of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct.
II. BACKGROUND
On December 29, 1997, Mr. Solano-Moreta was sentenced following a conviction for violating 18 U.S.C. §§ 924(c) & (2) and 21 U.S.C. § 848(a), (b) in the District of Puerto Rico. (ECF No. 1:1). See ECF No. 1485, United States v. Solano-Moreta, Case No. 95-160-1-SEC (D. Puerto Rico Dec. 29, 1997). The First Circuit Court of Appeals affirmed the conviction on direct appeal. United States v. Solano-Moreta, 1998 WL 1085815, at *1 (1st Cir. 1998). On June 24, 2005, Mr. Solano-Moreta filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, and the District of Puerto Rico denied relief. See ECF Nos. 1 & 11, Solano-Moreta v. United States, Case No. 05-1692 (D. Puerto Rico June 23, 2005 & July 23, 2007); ECF No. 1:3-4; Solano-Moreta v. Rios, 2008 WL 320335, at *3 (E.D. Ky. Feb. 4, 2008).
The Court may take judicial notice of the criminal case and any other related proceedings. See St. Louis Baptist Temple, Inc. v. Federal Deposit Insurance Corporation, 605 F.2d 1169 (10th Cir. 1979) (“Further, it has been held that federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”).
On January 24, 2008, in the Eastern District of Kentucky, Mr. Solano-Moreta filed a petition for habeas relief under 28 U.S.C. § 2241, challenging the validity of the conviction and sentence. See ECF No. 2, Solano-Moreta v. Rios, Case No. 08-CV-18-KKC (E.D. Ky. Jan. 24, 2008). On February 4, 2008, the Court denied the petition, noting that: (1) that Petitioner had failed to establish that his remedy under Section 2225 was “inadequate or ineffective, ” a prerequisite to proceeding under Section 2241, and (2) Petitioner had not sought permission with the First Circuit to file a second or successive motion under Section 2255. Solano-Moreta v. Rios, 2008 WL 320335, at *4 (E.D. Ky. Feb. 4, 2008). On March 18, 2009, the Sixth Circuit affirmed the district court's denial and on December 18, 2009, the United States Supreme Court denied certiorari. Solano-Moreta v. Johns, 2012 WL 3060379, at *1 (E.D. N.C. July 26, 2012).
On January 5, 2012, Mr. Solano-Moreta filed a second habeas petition under 28 U.S.C. §2241 in the Eastern District of North Carolina. See Solano-Moreta v. Johns, 2012 WL 3060379, at *1 (E.D. N.C. Jan. 5, 2012). Once again, Mr. Solano-Moreta attacked the legality, rather than the execution, of his sentence and conviction. Id. In denying the petition, the Court stated that Mr. Solano-Moreta had failed to: (1) establish that his remedy under Section 2225 was “inadequate or ineffective, ” a prerequisite to proceeding under Section 2241, and (2) seek permission with the First Circuit to file a second or successive motion under Section 2255. Id. at *2. The Fourth Circuit Court of Appeals affirmed the district court's denial. See Solano-Moreta v. Johns, 500 Fed.Appx. 257, 258, 2012 WL 6604697, at *1 (4th Cir. 2012).
On January 4, 2013, in the District of Puerto Rico, Petitioner filed a second motion to vacate and dismiss his conviction under 28 U.S.C. § 2255. See ECF No. 1, Solano-Moreta v. United States, Case No. CIV-13-1015-SEC (D. Puerto Rico Jan. 4, 2013). The District Court dismissed the petition because Mr. Solano-Moreta had not sought authorization in the First Circuit prior to filing the second or successive petition. See ECF No. 9, Solano-Moreta v. United States, Case No. CIV-13-1015-SEC (D. Puerto Rico June 27, 2013). On December 16, 2013, the First Circuit denied Mr. Solana's request for a certificate of appealability, noting: (1) that the petition was successive and Petitioner did not meet the statutory requirements applicable thereto and (2) the claims asserted were time-barred. See Judgment, Solano-Moreta v. United States, Case No. 13-2058 (1st Cir. Dec. 16, 2013).
On February 12, 2019, the District of Puerto Rico denied Petitioner's motion for sentence reduction under 18 U.S.C. § 3582(c)(2). See ECF No. 2114, United States v. Solano-Moreta, Case No. 95-CR-160 (D. Puerto Rico Feb. 19, 2019). On June 16, 2020, the First Circuit remanded the matter for further findings. Corrected Judgment, Solano-Moreta v. United States, Case No. 19-1255 (1st Cir. June 16, 2020). On March 19, 2021, the District of Puerto Rico granted Petitioner's motion for sentence reduction under 18 U.S.C. § 3582(c)(2), reducing Petitioner's sentence to 438 months. See ECF No. 2139, United States v. Solano-Moreta, Case No. 95-CR-160 (Mar. 19, 2021). On April 22, 2021, Mr. Solano-Moreta filed the instant habeas petition in this Court under 28 U.S.C. § 2241. (ECF No. 1). In the Petition, Mr. Solano-Moreta challenges the validity of his conviction, arguing actual/factual innocence. (ECF No. 1:2, 5-7).
III. DISMISSAL OF THE PETITION
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity” and “[a] 28 U.S.C. § 2255 petition attacks the legality of detention.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). In the instant action, Mr. Solano-Moreta is challenging the validity of his conviction and sentence. See ECF No. 1:2, 5-7. Generally, a federal prisoner seeking to challenge his conviction or sentence may do so by seeking a writ of habeas corpus exclusively through 28 U.S.C. § 2255(a). See Prost v. Anderson, 636 F.3d 578, 580 (10th Cir. 2011) (“Congress has told us that federal prisoners challenging the validity of their convictions or sentences may seek and win relief only under the pathways prescribed by § 2255.” (emphasis added)). Because Mr. Solano-Moreta has already filed two petitions under Section 2255, he would have to file a motion in the First Circuit Court of Appeals seeking authorization to file a second or successive § 2255 petition in the sentencing court. See 28 U.S.C. §§ 2244(b)(3) & 2255(h). Petitioner has not sought such authorization for the claim presented in the instant petition.
See supra.
The lone exception to § 2255(a)'s exclusivity is found in § 2255(e), known as “the savings clause, ” providing that a federal prisoner may challenge his conviction or sentence by other means if his remedy under § 2255 is inadequate or ineffective.
Specifically, the savings clause states:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255(e).
Under this provision, “a federal prisoner may resort to § 2241 to contest his conviction if but only if the § 2255 remedial mechanism is ‘inadequate or ineffective to test the legality of his detention.'” Prost v. Anderson, 636 F.3d at 580 (quoting § 2255(e)). Notably, it is the petitioner's burden to show the § 2255 remedy is inadequate or ineffective. Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999); see also Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013) (“It is [the petitioner's] burden to show that he meets § 2255(e)'s savings clause.”). In doing so, “[t]he relevant measure, . . . is whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion. If the answer is yes, then the petitioner may not resort to the savings clause and § 2241.” Prost v. Anderson, 636 F.3d at 584.
Mr. Solano-Moreta argues that Section 2255 is “inadequate or ineffective” in light of the Supreme Court's ruling in Rosemond v. United States, 572 U.S. 65 (2014). (ECF No. 1:3-7). In Rosemond, the Supreme Court held that aiding and abetting a firearm offense under 18 U.S.C. § 924(c) - using or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime” - requires proof of an additional element, that is, advance knowledge that a firearm would be used or carried during the commission of the predicate offense. Rosemond v. United States, 572 U.S. at 67. According to Mr. Solano-Moreta, he is “actually innocent” of violating Section 924(c) because “[t]he evidence shows that during the alleged drug trafficking crime the firearm was inside a bag, there was no active employment of the Firearm as required for a conviction under 924(c) For ‘use and carry' of a Firearm during a drug transaction nor was aiding and abetting.” (ECF No. 1:7). Petitioner contends that Section 2255 is “inadequate or ineffective” because Rosemond was issued after his latest Section 2255 had already been filed. (ECF No. 1:3-7). The Court should reject Petitioner's arguments.
First, in determining whether Petitioner may proceed under Section 2241, the Court need not decide whether Mr. Solano-Moreta has made a threshold showing of “actual innocence.” See Abernathy v. Wandes, 713 F.3d 538, at n.7 (10th Cir. 2013) (“Under the Prost framework, a showing of actual innocence is irrelevant.”); Guerrero v. English, 743 Fed.Appx. 207, 209-10 (10th Cir. 2018) (“a showing of actual innocence is irrelevant” when a court determines whether it has statutory jurisdiction to consider a § 2241 motion.”).
Second, merely because Rosemond was decided after Petitioner filed his latest Section 2225 petition does not render § 2255 “inadequate or ineffective.” See Abernathy v. Wandes, 713 F.3d at 548-549; Haskell v. Daniels, 510 Fed.Appx. 742, 745, 2013 WL 491549, at *2 (10th Cir. 2013) (“Admittedly, [the petitioner] could not have relied on Fowler, a 2011 Supreme Court decision, when he brought his § 2255 motion in 2008. But it was no different for the petitioner in Prost-he too might have benefitted from a cite to a Supreme Court decision announced after his § 2255 motion, but we concluded that having a new Supreme Court decision to cite was not reason enough to find the original § 2255 motion ‘inadequate or ineffective.'”) (citing Prost v. Anderson, 636 F.3d at 589).
Because Petitioner has failed to satisfy the savings clause, the Court lacks jurisdiction over the petition. See Abernathy v. Wandes, 713 F.3d at 557 (“when a federal petitioner fails to establish that he has satisfied § 2255(e)'s savings clause test-thus, precluding him from proceeding under § 2241-the court lacks statutory jurisdiction to hear his habeas claims.”).
IV. TRANSFER NOT WARRANTED
Because the savings clause does not apply, the Court should treat Mr. Solano-Moreta's petition as an unauthorized second or successive § 2255 motion. At this juncture, the District Court could: (1) dismiss the case, or (2) pursuant to 28 U.S.C. § 1631, transfer the case to the appropriate Court of Appeals, if transfer of the case would be in the interest of justice. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Here, it would not be in the interest of justice to transfer this action to the First Circuit Court of Appeals because Petitioner cannot satisfy the requirements of 28 U.S.C. § 2255(h), which requires a successive motion to contain:
See Russian v. Hudson, 796 Fed.Appx. 500, 503 (10th Cir. 2019) (affirming dismissal of 2241 petition which challenged legality of a federal conviction because petitioner was not able to establish that Section 2255 was inadequate or ineffective).
Section 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
1. newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
2. 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). Mr. Solano-Moreta has not identified any “new evidence” in his Petition and supporting brief and although he relies heavily on Rosemond in support of his claim, the First Circuit Court of Appeals has held that Rosemond is not retroactively applicable to cases on collateral review under § 2255(h). See Whitaker v. Coyne-Fague, ___F.Supp.3d___, 2021 WL 271834, at *3 (D.R.I. Jan. 27, 2021) (“In the First Circuit, which has long adhered to the reasoning of Rosemond, the decision has not been given retroactive effect.”); Vazquez-Castro v. United States, 53 F.Supp.3d 514, 522 (D. Puerto Rico, Sept. 30, 2014) (“Rosemond v. United States, 134 S.Ct. 1240, does not apply retroactively to cases on collateral review.”). Thus, it is likely that the First Circuit Court of Appeals would not authorize a successive petition under Section 2255, and the Court should decline to transfer the case.
V. SUMMARY
The Court should treat Mr. Solano-Moreta's Petition as an unauthorized second or successive petition under 28 U.S.C. § 2255. Although the Court could transfer the case to the First Circuit Court of Appeals for authorization to file a second or successive petition, the Court should decline to do so in the interest of justice and dismiss the action for lack of jurisdiction.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DISMISSED for lack of jurisdiction.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by May 24, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.