Opinion
9:20-CV-1314 (LEK/TWD)
04-28-2023
MIGUEL GONZALEZ-SANTIAGO, Petitioner, v. STANLEY LOVETT, Warden, Respondent.
MIGUEL GONZALEZ-SANTIAGO Petitioner, pro se Ray Brook Federal Correctional Institution HON. CARLA B. FREEDMAN United States Attorney for the Northern District of New York Attorney for Respondent
MIGUEL GONZALEZ-SANTIAGO Petitioner, pro se
Ray Brook Federal Correctional Institution
HON. CARLA B. FREEDMAN
United States Attorney for the Northern District of New York Attorney for Respondent
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Petitioner Miguel Gonzalez-Santiago (“Petitioner”) seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2241. Dkt. No. 1, Petition (“Pet.”); Dkt. Nos. 1-2, 1-3, Exhibits. On October 27, 2020, this action was administratively closed due to Petitioner's failure to properly commence it. Dkt. No. 2, Order Directing Administrative Closure. Petitioner was advised if he desired to pursue this action he must so notify the Court and, within thirty days of the Order, either: (1) pay the filing fee of five dollars, or (2) submit a completed, signed, and properly certified in forma pauperis (“IFP”) application. Id. at 2. Petitioner subsequently paid the filing fee and the case was reopened. Dkt. Entry dated 11/30/2020 (identifying receipt information for the filing fee transaction); Dkt. No. 3, Text Order (restoring action to the Court's active docket).
Respondent successfully requested an extension of time to file a response. Dkt. No. 6, Letter Motion; Dkt. No. 7, Text Order (granting request). Respondent subsequently submitted a response opposing the petition. Dkt. No. 8, Response to Petition; Dkt. Nos. 8-2, 8-3, Declarations with Attachments. Petitioner declined to file a reply.
II. RELEVANT BACKGROUND
On March 7, 1994, Petitioner was sentenced to concurrent terms of ninety-nine years' imprisonment following convictions for First Degree Murder, Attempted First Degree Murder, Robbery, and various Weapons Violations by the Commonwealth of Puerto Rico. Dkt. No. 8-2 at 5. While serving said sentence in the custody of the Puerto Rico Department of Corrections, Petitioner was engaged in a conspiracy to possess heroin with intent to distribute, in violation of federal law. Dkt. No. 8-2 at 2 ¶ 5.
Citations to the parties' submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system.
On August 8, 2004, Petitioner entered a plea of guilty to one count of Conspiracy to Possess with Intent to Distribute Heroin. Dkt. No. 8-2 at 30. On November 23, 2004, the United States District Court for the District of Puerto Rico committed Petitioner to the custody of the United States Bureau of Prisons (“BOP” or “FBOP”) to be imprisoned for a term of one hundred eighty-eight months “[t]o be served[: (1)] consecutively to any undischarged term of imprisonment being served by [Petitioner] at the time of the commission of the [conspiracy to possess with intent to distribute heroin] . . . [and (2)] prior to any state sentence.” Dkt. No. 8-2 at 31 (emphasis added). Petitioner appealed his judgment of conviction to the United States Court of Appeals for the First Circuit in December of 2004. Dkt. No. 8-1 at 31-38.
Petitioner argued: (1) the sentencing court erred by imposing enhancements based on facts Petitioner had not admitted in applying the sentencing guidelines; and (2) his entry of a plea of guilty was not intelligently made. Dkt. No. 8-1 at 36.
On November 7, 2005, the District of Puerto Rico amended Petitioner's judgment to remove the language which ordered the 188 month sentence to be served “prior to any state sentence.” Dkt. No. 8-2 at 36-40; compare Dkt. No. 8-2 at 31 with Dkt. No. 82 at 37. The amended judgement instead recommended Petitioner “be allowed to serve his Federal Sentence first and then be returned to the Commonwealth of Puerto Rico to serve the remainder of his sentence.” Dkt. No. 8-2 at 37.
The Amended Judgment lists the “Reason for Amendment” as “Correction of Sentence by Sentencing Court (Fed. R. Crim. P. 35(a)[).]” Rule 35 states: “Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35(a).
In May of 2006, pursuant to an Intergovernmental Agreement, the Commonwealth of Puerto Rico agreed to waive primary custodial jurisdiction of Petitioner and several other inmates serving state sentences “so that they may continue serving the State (Puerto Rico) imposed sentence, and once fulfilled they may begin the Federal imposed sentence.” Dkt. No. 8-2 at 45-46 (letter from Puerto Rico Department of Corrections Secretary to FBOP Director); see also Dkt. No. 8-2 at 48-49 (letter from FBOP Regional Director, acknowledging agreement to accept inmates for placement), 51-52 (Report on Changes for Fulfillment of Sentence). On September 22, 2006, the First Circuit affirmed Petitioner's judgment of conviction for Possession with Intent to Distribute Heroin. Dkt. No. 8-1 at 37.
On December 14, 2015, Petitioner filed a motion in the District of Puerto Rico pursuant to Fed. R. Crim. P. 60(a), as well as any other applicable statute or rule, requesting his sentence run concurrently with, rather than consecutively to, the ninety-nine year term of imprisonment imposed by the Commonwealth of Puerto Rico. Dkt. No. 8-1 at 4-11. Petitioner argued he was not proficient in English and believed:
[H]is [federal] sentence would run concurrent with [the sentence imposed by the Commonwealth of Puerto Rico] . . . This is the main reason why [Petitioner] accepted responsibility (pled guilty). Plus [Petitioner] believed that he would have served his federal sentence first, then return . . . [to the Commonwealth of] Puerto Rico.
Dkt. No. 8-1 at 6. Petitioner also argued the judgment contained a mechanical error. Dkt. No. 8-1 at 7.
On February 4, 2016, the District of Puerto Rico found “the imposition of a consecutive . . . sentence was not a clerical mistake” as the imposition of a consecutive sentence was consistent with the terms of Petitioner's plea agreement. Dkt. No. 8-1 at 29. Further, to the extent Petitioner's motion challenged the constitutionality of his conviction, the District of Puerto Rico construed the motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2255 but reasoned the challenge was time-barred as it had been filed nine years after Petitioner's conviction became final. Id. Accordingly, the District Court denied Petitioner's motion “insofar as it is a Rule 60 motion” and dismissed it “as untimely insofar as it is a habeas petition under 28 U.S.C. § 2255.” Id.
On February 24, 2016, the District of Puerto Rico granted Petitioner's motion to reduce his sentence for Possession with Intent to Distribute Heroin from 188 months to 144 months. Dkt. No. 8-2 at 42-43. The Order reducing Petitioner's sentence further stated “[e]xcept as otherwise provided, all provisions of the [November 2005 Amended Judgment] . . . shall remain in effect.” Dkt. No. 8-2 at 42. Petitioner is currently confined at the Federal Correctional Institution in Ray Brook, New York. Pet. at 1.
III. PETITION
Petitioner commenced the instant action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pet. Petitioner challenges his November 2005, amended judgment of conviction following entry of a plea of guilty to one count of Possession with Intent to Distribute Heroin in the District of Puerto Rico. See Pet. at 68; Dkt. No. 8-2 at 36-40. Petitioner argues the District of Puerto Rico amended said judgment “without any legal authority” as Fed. R. Crim. P. 35(a) permits correction of a sentence only within fourteen days of sentencing; therefore, the District of Puerto Rico's amendment of Petitioner's sentence, following the expiration of the fourteen day period, is void. Pet. at 7-8. Respondent avers the United States District Court for the Northern District of New York lacks jurisdiction to review Petitioner's claim. Dkt. No. 8 at 8-15.
IV. DISCUSSION
A. The Instant Petition is a Successive § 2255 Application which the “Savings Clause” Cannot Save
“Title 28 U.S.C. §§ 2241 and 2255 each create mechanisms for a federal prisoner to challenge his detention, but the two sections offer relief for different kinds of perceived wrongs.” Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004); see also Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir. 2003). The Second Circuit has explained “§ 2255 is the appropriate vehicle for a federal prisoner to challenge the imposition of his sentence . . . [§] 2241 by contrast is the proper means to challenge the execution of a sentence.” Adams, 372 F.3d at 134 (emphasis in original) (first citing Chambers v. United States, 106 F.3d 472, 474 (2d Cir.1997), then citing Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001)); see also Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (“A challenge to the execution of a sentence-in contrast to the imposition of a sentence-is properly filed pursuant to § 2241.”) (citation omitted).
Challenges to the execution of a sentence, which are properly brought under § 2241, concern “matters such as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions.” Levine, 455 F.3d at 78 (citing Jiminian, 245 F.3d at 146; Poindexter, 333 F.3d at 377; Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001); Chambers, 106 F.3d at 473-75; Boudin v. Thomas, 732 F.2d 1107, 1112 (2d Cir. 1984)) (internal quotations and emphasis omitted). By contrast,
Section 2255 provides relief in cases where the sentence: (1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack.Adams, 372 F.3d at 134 (citing 28 U.S.C. § 2255); see also Roccisano v. Menifee, 293 F.3d 51, 57 (2d Cir. 2002) (explaining, “[a]s a ‘general rule,' when collaterally attacking a sentence on the ground that he was convicted in violation of the Constitution or federal law, ‘a federal prisoner must use § 2255.'”) (quoting Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997)) (additional citation omitted).
The fact that Petitioner has requested relief pursuant to § 2241 does not require this Court to construe the petition as such. See James v. Schult, No. 9:09-CV-0741 (LEK), 2009 WL 1940047, at *3 (N.D.N.Y. July 7, 2009). “Rather, ‘it is the substance of the petition, rather than its form, that governs.'” Id. (quoting Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003) (quoting James v. Walsh, 308 F.3d 162, 166 (2d Cir. 2002)) (additional quotations omitted).
Here, Petitioner asks this Court to “declare the [amended] judgment issued by the U.S. District Court for the District of Puerto Rico on Nov[ember] 8, 2005[,] an invalid act, and order B.O.P. officials to execute the only valid judgment[, the judgment] rendered on Nov[ember] 23, 2004.” Pet. at 6. In support of this request, Petitioner argues the U.S. District Court for the District of Puerto Rico amended his judgment “without any legal authority to do so” because “the judgment was amended pursuant to Fed. R. Crim. P. 35(a)” after the conclusion of the rule's fourteen day window to correct a sentence; therefore, “the District [J]udge's jurisdiction to alter [Petitioner's] sentence [had] extinguished.” Pet. at 8. Petitioner also contends § 2255 is inadequate to resolve the instant matter because he is “challenging the way that B.O.P. officials are carrying out [his] sentence.” Pet. at 5. Respondent avers Petitioner's challenge concerns the validity of his federal conviction and, thus, falls within the scope of § 2255. Dkt. No. 8 at 8-10.
Petitioner's challenge to the validity of his amended judgment, contesting the “legal authority” of the District of Puerto Rico to amend his sentence, concerns the imposition of Petitioner's sentence, rather than its execution. See e.g., Amir v. Barr, No. 9:20-CV-0306 (GTS/TWD), 2020 WL 1529727, at *4 (N.D.N.Y. Mar. 31, 2020) (finding a petition “brought pursuant to § 2241” was “actually a § 2255 petition in disguise” because petitioner's challenge to the federal court's jurisdiction to convict him “deal[t] with the imposition of petitioner's sentence, not its execution.”); James, 2009 WL 1940047, at *1-3 (finding the petitioner's “argu[ments] that the federal government lacked jurisdiction to prosecute him, and that the District Court for the Eastern District of Pennsylvania lacked jurisdiction to sentence him” were “challenging the imposition of his sentence, rather than its execution.”). Therefore, this Court must treat it as a § 2255 petition. Cook, 321 F.3d at 277. However, § 2255 “contains a gate-keeping feature that limits a prisoner's ability to file a second or successive § 2255 motion.” Adams, 372 F.3d at 135.
Ordinarily, when a district court recharacterizes a pro se petitioner's filing “as a first § 2255 motion[,]” the court must “notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or successive' motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.” Castro v. United States, 540 U.S. 375, 383 (2003). The notice requirements do not apply to federal prisoners, like petitioner, who had one or more prior section 2255 motions dismissed on the merits because petitioner is already subject to the gate keeping provisions that require certification from the appropriate court of appeals before any second or successive motion may be considered by the district court. Adams, 372 F.3d at 136; Roccisano, 293 F.3d at 58.
Where a petitioner who has previously filed a § 2255 motion seeks to file another, an appropriate court of appeals must certify the new motion contains either:
“(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.”Adams, 372 F.3d at 135 (quoting 28 U.S.C. § 2255(h)(1)-(2); and citing 28 U.S.C. § 2244(b)); see also Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004) (“A motion will be regarded as second or successive if a previous habeas petition filed by the movant challenged the same conviction or sentence and was adjudicated on the merits or dismissed with prejudice.”) (citing Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998); Mata v. United States, 969 F.3d 91, 93 (2d Cir. 2020) (“To file a second or successive motion pursuant to 28 U.S.C. § 2255, a petitioner must ‘move in the appropriate court of appeals for an order authorizing the district court to consider the application.'”) (quoting 28 U.S.C. § 2244(b)(3)(A)). Petitioner has not satisfied this gatekeeping provision. Indeed, his petition makes no reference to either newly discovered evidence or a new rule of law. Yet, “[i]n some very limited circumstances, claims that fall within the substantive scope of § 2255 may properly be made in a petition filed under § 2241.” Poindexter, 333 F.3d at 378 (citing Jiminian, 245 F.3d at 147-48; Triestman, 124 F.3d at 373-74, 377-78).
Section 2255(e) allows an application for a writ of habeas corpus to be entertained, despite a petitioner's previous unsuccessful request for relief, where it “appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e) (emphasis added). The Second Circuit has interpreted this so-called “savings clause . . . to authorize a § 2241 petition only when § 2255 is unavailable and the petition[er] . . . (1) can prove actual innocence on the existing record, and (2) could not have effectively raised [his] claim[ ] of innocence at an earlier time[.]” Dhinsa v. Krueger, 917 F.3d 70, 81 (2d Cir. 2019) (quoting Cephas v. Nash, 328 F.3d 98, 104 (2d Cir. 2003) (quoting Triestman, 124 F.3d at 363 (2d Cir. 1997)) (emphasis in original, internal quotations omitted). Satisfaction of the savings clause's requirements is jurisdictional; therefore, a petitioner's failure to do so will warrant dismissal. See id. (“Because the savings clause articulates a jurisdictional requirement, a court adjudicating a § 2241 petition must confirm that the savings clause can be applied at all before proceeding with a full merits review of the petitioner's claims.”) (citing 28 U.S.C. § 2255(e); Adams, 372 F.3d at 136); Cephas, 328 F.3d at 105 (where a “petitioner invokes § 2241 jurisdiction to raise claims that clearly could have been pursued earlier, or where his asserted innocence is plainly belied by the record, then the savings clause of § 2255 is not triggered and dismissal of the § 2241 petition for lack of jurisdiction is warranted.”).
In order for a petitioner to avail himself of this savings clause, “it is insufficient simply that relief under § 2255 is unavailable because . . . a prior motion under § 2255 has been made and a successive motion under that section is disallowed by the court of appeals under the gatekeeping provisions of 28 U.S.C. §§ 2244 and 2255[.]” Poindexter, 333 F.3d at 378 (citing Roccisano, 293 F.3d at 57; Jiminian, 245 F.3d at 147-48). Furthermore, Petitioner has failed to even suggest, much less prove, he is actually innocent of the underlying federal offense. See Dhinsa, 917 F.3d at 81 (explaining “[t]o make a threshold showing of ‘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.'”) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Therefore, § 2255(e)'s “savings clause” is not applicable.
In sum, Petitioner's challenge to the imposition of his amended judgment of conviction may not be made in a § 2241 application, and Petitioner is unable to sustain an action pursuant to § 2255. Accordingly, dismissal for lack of jurisdiction is warranted. Dhinsa, 917 F.3d at 81; Cephas, 328 F.3d at 105.
B. Transferring the Petition to the First Circuit Court of Appeals is Not Recommended
Dismissal, however, may not be the sole permissible disposition of the instant petition. The Second Circuit Court of Appeals has held:
[W]hen presented with a § 2241 petition raising previously available claims appropriately the subject of a § 2255 motion, district courts should construe the petition as a second or successive § 2255 motion and transfer it to th[e appropriate Court of Appeals] for certification, so long as the prisoner had a prior § 2255 motion dismissed on the merits.Jiminian, 245 F.3d at 148 (citing 28 U.S.C. § 2244(a); Triestman, 124 F.3d at 373 n. 17).
Petitioner could have challenged the District of Puerto Rico's use of Fed. R. Crim. P. 35 in his December 2015 motion which was construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2255. Therefore, the instant petition raises a “previously available claim[.]” Additionally, for the reasons discussed above, Petitioner's claim is “appropriately the subject of a § 2255 motion[.]” Finally, because the District of Puerto Rico dismissed Petitioner's December 2015 action “as untimely insofar as it [wa]s a habeas petition under 28 U.S.C. § 2255,” Dkt. No. 8-1, Exhibit A at 3, Petitioner has “had a prior § 2255 motion dismissed on the merits.” Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003) (holding “a habeas or § 2255 petition that is properly dismissed as time-barred under AEDPA constitutes an adjudication on the merits for successive purposes.”).
Accordingly, transferring the instant petition to the First Circuit Court of Appeals-which presides over the District of Puerto Rico, where Petitioner's sentence was imposed -would be a permissible disposition. However, courts in this circuit have declined to transfer cases such as Petitioner's which fail to meet the statutory requirements for filing a second or successive § 2255 petition. See Figueroa v. Fernandez, No. 9:21-CV-0165 (DNH), 2021 WL 1026969, at *5 (N.D.N.Y. Mar. 17, 2021) (“[T]ransferring this action to the Third Circuit would be a permissible disposition.
However, the Court declines to transfer the case because the petition plainly fails to meet the requirements imposed by 28 U.S.C. § 2255(h) for filling a second or successive section 2255 petition.”) (citing 28 U.S.C. § 2255(h)(1)-(2)); Bentley v. Fernandez, No. 9:18-CV-1025 (MAD/CFH), 2018 WL 4853286, at *5 n.5 (N.D.N.Y. Oct. 5, 2018) (“[T]ransferring this action to the Third Circuit would be a permissible disposition; however, the Court declines to transfer the case to the Third Circuit because the petition plainly does not meet the requirements imposed by 28 U.S.C. § 2255(h) for filling a second or successive section 2255 petition.”) (citing 28 U.S.C. § 2255(h)(1)-(2)).
The instant petition similarly fails to meet § 2255(h)'s requirement that a second or successive petition contain either “(1) newly discovered evidence . . . or (2) a new rule of constitutional law . . . that was previously unavailable.” 28 U.S.C. § 2255(h)(1)-(2). Therefore, the undersigned solely recommends the instant petition be denied and dismissed.
V. CONCLUSION
WHEREFORE, it is
RECOMMENDED that the petition, Dkt. No. 1, be DENIED and DISMISSED in its entirety; and it is further
RECOMMENDED that no Certificate of Appealability (“COA”) shall issue because reasonable jurists would not find it debatable that Petitioner has failed to offer a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
ORDERED that the Clerk shall serve a copy of this Report-Recommendation and Order on Petitioner, along with copies of unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 & 6(a).
If you are proceeding pro se and are served with this Report-Recommendation and Order and by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen (17) days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.