Opinion
Civil 4:21-CV-1074
08-19-2021
OCTAVIO FRIAS, Petitioner v. WARDEN JAMISON, Respondent
Brann Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge.
I. Statement of Facts and of the Case
Octavio Frias, a federal prisoner housed in the Federal Correctional Institution, Allenwood, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, which attacks his conviction in the United States District Court for the Southern District of New York following his involvement in a drug trafficking murder. As the Court of Appeals explained when it affirmed the life sentence imposed upon Frias:
On January 2, 2003, the defendant, Octavio Frias, was charged by superseding indictment with one count of committing murder while engaged in a conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin and more than five kilograms of cocaine. Viewed in the light most favorable to the government, the evidence at trial established that Frias assisted in a large-scale narcotics and gambling operation run by Roberto Martinez-Martinez, a/k/a “Papito, ” and Mario Lobo, a/k/a “Alberto Cruz.” When
Lobo's gambling losses threatened the narcotics business, Martinez-Martinez decided to have Lobo killed. Frias made all the arrangements: he hired gunmen, pointed out Lobo for them on the night of the murder, and paid their travel expenses when the job was successfully completed. On March 12, 2003, the jury returned a verdict of guilty.United States v. Frias, 521 F.3d 229, 231 (2d Cir. 2008).
Frias has appealed his conviction and sentence, but to no avail, and has also sought post-conviction relief before the sentencing court without success. Frias v. United States, No. 01 CR 307 JFK, 2010 WL 3564866, at *1 (S.D.N.Y. Sept. 13, 2010). It is against this procedural backdrop that Frias has now filed a § 2241 habeas petition, challenging his conviction and sentence based upon his claim that he is actually innocent of this crime because the evidence was insufficient to convict him of this offense. (Doc. 1). Typically, such sentencing arguments are uniquely the province of the sentencing court for consideration through a second or successive motion to vacate or correct sentence under 28 U.S.C. § 2255. Frias, however, urges us instead to consider the merits of these arguments through a habeas corpus petition brought pursuant to 28 U.S.C. § 2241.
For the reasons set forth below, we should decline this invitation to substitute relief under the general habeas corpus statute, 28 U.S.C. § 2241, for the remedy prescribed by law, a post-conviction motion to vacate sentence pursuant to 28 U.S.C. § 2255 filed with the sentencing court after leave to file a successive petition is granted by the court of appeals. Our review of this case leaves us convinced that this matter is not appropriately brought as a habeas petition under § 2241, but rather should dismissed and refiled with the United States Court of Appeals for the Second Circuit as a request for leave to file a second and successive petition under § 2255.
II. Discussion
A. This Petition Should Be Dismissed.
In this case, we find that the petitioner has not made out a valid case for pursuing habeas relief in this district in lieu of a second or successive motion to correct sentence filed in the district of conviction under 28 U.S.C. § 2255. This showing is a prerequisite for a successful habeas petition in this particular factual context. Therefore, since the petitioner has not made a showing justifying habeas relief at this time, this petition is subject to summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 28 U.S.C. § 2254 (Rule 4 applies to § 2241 petitions under Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa. 1979) (explaining that Rule 4 is “applicable to Section 2241 petitions through Rule 1(b)”).
Rule 4 provides in pertinent part: “If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Summary dismissal of this habeas petition, which seeks to correct a federal prisoner's sentence, is appropriate here since it is well settled that “the usual avenue for federal prisoners seeking to challenge the legality of their confinement, ” including a challenge to the validity of a sentence, is by way of a motion filed under 28 U.S.C. § 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). See also United States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999) (stating that § 2255 provides federal prisoners a means by which to bring collateral attacks challenging the validity of their judgment and sentence); Snead v. Warden, F.C.I. Allenwood, 110 F.Supp.2d 350, 352 (M.D. Pa. 2000) (finding that challenges to a federal sentence should be brought in a motion filed under 28 U.S.C. § 2255). Indeed, it is now clearly established that § 2255 specifically provides the remedy to federally-sentenced prisoners that is the equivalent to the relief historically available under the habeas writ. See Hill v. United States, 368 U.S. 424, 427 (1962) (stating, “it conclusively appears from the historic context in which § 2255 was enacted that the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined”).
Therefore, as a general rule, a § 2255 motion “supersedes habeas corpus and provides the exclusive remedy” to one in custody pursuant to a federal court conviction. Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972). Indeed, it is clear that “Section 2241 ‘is not an additional, alternative or supplemental remedy to 28 U.S.C. § 2255.'” Gomez v. Miner, No. 3:CV-06-1552, 2006 WL 2471586, at *1 (M.D. Pa. Aug. 24, 2006) (quoting Myers v. Booker, 232 F.3d 902 (10th Cir. 2000)). Instead, § 2255 motions are now the exclusive means by which a federal prisoner can challenge a conviction or sentence that allegedly is in violation of the Constitution or federal laws or that is otherwise subject to collateral attack. See Davis v. United States, 417 U.S. 333, 343 (1974). Thus, federal inmates who wish to challenge the lawfulness of their sentences must typically file motions with the sentencing court under § 2255.
This general rule admits of only one narrowly-tailored exception, albeit an exception that has no application here. A defendant is permitted to pursue relief under 28 U.S.C. § 2241 only where he shows that the remedy under § 2255 would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see also United States v. Brooks, 230 F.3d 643, 647 (3d Cir. 2000) (recognizing availability of § 2241 in cases where petitioners have no other means of having claims heard). The inadequacy or ineffectiveness must be “a limitation of scope or procedure . . . prevent[ing] a § 2255 proceeding from affording . . . a full hearing and adjudication of [a] wrongful detention claim.” Okereke v. United States, 307 F.3d 120 (3d Cir. 2002) (citing Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam)). “It is the inefficacy of the remedy, not the personal inability to use it, that is determinative.” Cradle, 290 F.3d at 538-39 (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)). Accordingly, “[s]ection 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.” Cradle, 290 F.3d at 539. Furthermore, if a petitioner improperly challenges a federal conviction or sentence under § 2241, the petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
In this case, the representations that the petitioner makes in his petition simply do not demonstrate that he is entitled to resort to seeking habeas relief under 28 U.S.C. § 2241 on the grounds that a motion under 28 U.S.C. § 2255 would be ineffective or inadequate. None of the petitioner's claims fall within the narrow exception outlined in In re Dorsainvil, 19 F.3d 245 (3d Cir. 1997), in which § 2241 relief could be available in lieu of a motion under 28 U.S.C. § 2255. In Dorsainvil, the Third Circuit held that § 2241 relief was available only in very narrow instances to a petitioner who had no earlier opportunity to challenge his conviction for conduct that an intervening change in substantive law made no longer criminal. Id. at 251.
In this regard: “[i]t is important to note in this regard that ‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). “To establish actual innocence, petitioner must demonstrate that, ‘ “ ‘in light of all the evidence, ”' ‘it is more likely than not that no reasonable juror would have convicted him.' Schlup v. Delo, 513 U.S. 298, 327-328 (1995) (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)).” Bousley, 523 U.S. at 623. Applying this principle to claims made under Dorsainvil:
[T]his Court would have jurisdiction over Petitioner's petition if, and only if, Petitioner demonstrates: (1) his “actual innocence, ” (2) as a result of a retroactive change in substantive law that negates the criminality of his conduct, (3) for which he had no other opportunity to seek judicial review. See Dorsainvil, 119 F.3d at 251B52; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir.2002); Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). A claim of “actual innocence” relates to innocence in fact, not innocence based on a legal, procedural defect. A litigant must present evidence of innocence so compelling that it undermines the court's confidence in the trial's outcome of conviction; thus, permitting him to argue the merits of his claim. A claim of actual innocence requires a petitioner to show: (a) new reliable evidence not available for presentation at the time of the challenged trial; and (b) that it is more likely than not that no reasonable juror would have convicted the petitioner in the light of the new evidence. See House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006);
Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Furthermore, the Supreme Court, in House, emphasized that the gateway standard for habeas review in claims asserting actual innocence is extremely demanding and permits review only in the “extraordinary” case. See House, 547 U.S. at 536B37 (CITING Schlup, 513 U.S. at 327).White v. Zickefoose, CIV 10-0548 (RMB), 2010 WL 1050171 (D.N.J. Mar. 19, 2010).
On its face, this petition simply does not demonstrate that this narrow exception has any legitimate application to the instant proceedings. Frias was convicted at trial of committing a murder while engaged in drug trafficking. This conduct remains as illegal now as it was when Frias was convicted and his arguments regarding the sufficiency of the evidence do not equate to a claim of actual, factual innocence. Therefore, the Dorsainvil exception, under which § 2241 relief could be available in lieu of a motion under 28 U.S.C. § 2255, simply has no application here. Instead, the petitioner's current § 2241 petition seems explicitly premised on a notion of judge-shopping, a desire to litigate sentencing claims in a different forum. Such a claim is plainly inadequate as an excuse for foregoing the proper course of litigating collateral challenges to a petitioner's federal conviction, and therefore this request must be rejected by this court. Manna v. Schultz, 591 F.3d 664 (3d Cir. 2010).
The petitioner may not avoid this outcome by simply arguing that the sentencing court failed to grant him relief in the past when he filed a motion under 28 U.S.C. § 2255. While we take no position on whether Frias may be able to successfully obtain leave from the United States Court of Appeals for the Second Circuit to file a second or successive motion for relief under § 2255 with the United States District Court, to the extent he wishes to pursue such relief, he should consult the Rules Governing Section 2255 Proceedings for the United States District Courts. In particular, Frias is directed to Rule 9, which provides that “[b]efore presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion, as required by 28 U.S.C. § 2255, para. 8.” See also 28 U.S.C. § 2244(b)(3) (outlining procedure for obtaining leave from the court of appeals to file a second or successive motion for relief in the district court); 28 U.S.C. § 2255(h). Reliance on the process for pursuing second and successive motions to correct sentence under 28 U.S.C. § 2255 is particularly appropriate here given the nature of Frias' claims, since it is evident that his request may call for further fact-finding by the sentencing judge. See United States v. Johnson, 587 F.3d 203 (3d Cir. 2009). Thus, the issues framed by this petition are uniquely within the purview of the sentencing judge and are uniquely susceptible to resolution through a motion to correct sentence under § 2255.
Section 2255(h) provides that a second or successive petition “must be certified” by a panel of the appropriate court of appeals to contain either “(1) newly discovered evidence that, if proven and viewed in light of the evidence of the 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.”
Furthermore, while Frias suggests that he has tried, unsuccessfully, to file a prior § 2255 petition, this assertion, standing alone, does not demonstrate that § 2255 would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). In this regard, it bears repeating that “[i]t is the inefficacy of the remedy [under § 2255], not the personal inability to use it, that is determinative.” Cradle, 290 F.3d at 538-39 (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)). Accordingly, as a matter of law “[s]ection 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, . . . .” Cradle, 290 F.3d at 539. Therefore, Frias may not simply rely upon the prior refusal of the courts to grant him relief under § 2255 to justify foregoing such a motion at this time.
In sum, Frias invites this court under the guise of a habeas petition to do something that only the sentencing court should do-vacate his conviction and sentence. We should also decline this invitation, given that Frias has made no showing that § 2255 is inadequate or ineffective to test the legality of his sentence, and that the remedy afforded under § 2241 is not an additional, alternative, or supplemental remedy to that prescribed under § 2255. Therefore, it is recommended that the petition be denied with instructions that Frias should pursue any relief in this matter under § 2255 through a properly framed motion directed to the court of appeals for leave to file second or successive motion to correct his sentence.
III. Recommendation
For the reasons set forth above, it is RECOMMENDED that the Court deny this petition for a writ of habeas corpus (Doc. 1) on the grounds that the Court lacks jurisdiction to consider the petition, but without prejudice to the petitioner taking whatever action before the court of appeals he deems appropriate under § 2255 to preserve and present this issue in a second or successive motion to correct his sentence.
Petitioner is placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.