Opinion
Case No. 1:18-cv-374
04-20-2020
VICTOR LEBRON-CEPEDA, 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 Victor Lebron-Cepeda (Petitioner) pursuant to 28 U.S.C. § 2241 be dismissed for lack of jurisdiction and lack of exhaustion. 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 March 31, 2003, the United States District Court for the District of Puerto Rico (the "sentencing court") sentenced Petitioner to life imprisonment based on his role in a 1996 murder and carjacking. ECF No. 4. See also United States v. Lebron-Cepeda, 324 F.3d 52, 54-56 (1st Cir. 2003). The sentencing court also ordered Petitioner to pay $1,250.00 in restitution. See United States v. Carabello-Gonzalez et al., No. 3:96-cr-105 (D. P.R. 1996), at ECF No. 613.
In his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, Petitioner raises four grounds for relief. First, Petitioner argues that his "judgment is void due to §16 is a nullity that cannot be incorporated by reference into 18 U.S.C. § 3663A(C)(1)(A)(i)." ECF No. 4 at 2. Although he does not mention it by name, Petitioner appears to be invoking the United States Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), wherein the Court held that a statutory provision defining certain "aggravated felonies" in 18 U.S.C. § 16(b) was unconstitutionally void for vagueness. Petitioner appears to argue that the mandatory restitution portion of his sentence is invalid because the restitution statute, 18 U.S.C. § 3663A(C)(1)(A)(i), incorporates terminology from 18 U.S.C. § 16.
Petitioner's remaining three grounds for relief each appear to challenge the execution of his restitution order on various grounds. ECF No. 4 at 7-8. Specifically, he alleges that the sentencing court illegally delegated the scheduling of restitution payments to probation officers and the Federal Bureau of Prisons (BOP) (Ground Two), that the BOP's collection of restitution payments violates federal law (Ground Three), and that restitution payments amount to extortion (Ground Four). Id. Critically, Petitioner concedes that he has not exhausted any of these claims. Id.
B. Discussion
1. Petitioner's challenge to the validity of his sentence (Ground One)
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 first ground for relief does not fall into either of these categories. Although he has not supplied any argument in support of his Petition, a careful review of his allegations suggests that Petitioner believes that the sentencing court illegally ordered mandatory restitution based on a statutory provision that has since been called into question by the Supreme Court's decision in Dimaya. 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 carjacking and related firearms offenses. Rather, he is challenging the restitution portion of his sentence based upon an intervening change in substantive law. Courts in this district have consistently held that similar Dimaya-based claims may not be asserted in a § 2241 petition. As the District Court for the Middle District of Pennsylvania recently held:
[T]he United States Court of Appeals for the Third Circuit recently recognized that § 2241 was not the appropriate vehicle to pursue a Dimaya based claim. See Rosello, v. Warden, FCI-Allenwood, 2018 WL 2357313 * 3, n. 5 (3d. Cir. May 24, 2018). Accordingly, Petitioner's reliance on Dimaya in seeking § 2241 relief is also misplaced.
* * * * * * *
As recognized by the Honorable Kim R. Gibson in Pollard v. Yost, No. 07-235, 2008 WL 4933599, at *6 (W.D. Pa. Nov. 18, 2008), for a challenge to a federal conviction to be presented by a federal inmate by
way of a § 2241 petition, there must not only be "a claim of actual innocence but a claim of actual innocence coupled with the inability to have brought the claim before because of a change in the construction of the criminal statute by a court having the last word on the proper construction of the statute, which change rendered what had been thought to be criminal within the ambit of the statute, no longer criminal."Luster v. White, 2018 WL 2981333, at *2 (M.D. Pa. June 14, 2018). See also Trevino v. United States, 2018 WL 5437741, at *3 (M.D. Pa. Oct. 29, 2018) (noting that "§ 2241 is not the appropriate vehicle to pursue a Dimaya based claim."); Montgomery v. Young, 2020 WL 859306, at *3 (D.N.J. Feb. 21, 2020) (same).
It is evident here that Petitioner's pending claim does not fall within the narrow Dorsainvil exception to the general rule that section 2255 provides the exclusive avenue by which a federal prisoner may mount a collateral challenge to his conviction or sentence. See Levari v. Sneizek, 325 Fed. Appx. 55, 57 (3d Cir. April 2009). As considered in Cradle, the fact that Luster's § 2255 action . . . was denied by the sentencing court does not warrant a determination that § 2255 is inadequate or ineffective to test the legality of Petitioner's guilty plea.
Given the above decisions, especially the Third Circuit's recent determination that § 2241 is not the appropriate vehicle to pursue a Dimaya claim, and Petitioner's failure to present this Court with any authority to support a determination that any federal court has held that a Dimaya based claim such as the one presently raised may be pursued via a § 2241 proceeding, habeas corpus review is not appropriate here.
Based on the foregoing, Petitioner has failed to demonstrate that his Dimaya claim falls within the narrow Dorsenvail exception or that the remedy provided by § 2255 would otherwise be inadequate or ineffective. Accordingly, Ground One of his § 2241 petition must be dismissed for lack of jurisdiction.
2. Petitioner's challenge to the execution of his sentence (Grounds Two, Three and Four)
To the extent that Petitioner is challenging the way the Bureau of Prisons administered his restitution payments, Petitioner has failed to exhaust his administrative remedies with respect to any such claims. In order to challenge the execution of his sentence by way of a § 2241 petition, a federal prisoner must have first exhausted the BOP's administrative remedies. See, e.g., Vasquez v. Strada, 684 F.3d 431, 433 (3d Cir. 2012) (citing Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996)). Pursuant to 28 C.F.R. § 542.13, inmates are first encouraged to attempt to resolve their complaints informally by addressing the matter with a member of their Unit Team. 28 C.F.R. § 542.13. If informal resolution fails, the inmate may file a formal complaint with the Warden of his institution. 28 C.F.R. § 542.14(a). If the inmate is not satisfied with the Warden's response, he may appeal the response to the Regional Director within 20 days of the date of the Warden's response. 28 C.F.R. § 542.15(a). If the inmate is dissatisfied with the Regional Director's response, he may file a Central Office Appeal with the BOP's Office of General Counsel within 30 days of the date of the Regional Director's response. Id. Appeal to the Office of General Counsel is the final administrative appeal in the BOP. Id.
In the instant case, the record clearly demonstrates that Petitioner failed to administratively exhaust any of his claims. The form used by Petitioner to initiate his § 2241 action contains the following query under each individual ground for relief: "Did you present [this ground for relief] in all appeals that were available to you?" ECF No. 4, at 7-9. Petitioner checked the box indicating "no" for each ground for relief. Id. The record also contains a declaration from Joyce Horikara, Deputy Regional Counsel for the Federal Bureau of Prisons, attesting to the fact that Petitioner has not filed a single administrative remedy request or appeal regarding his restitution. ECF No. 12-1. As such, Grounds Two, Three, and Four must each be dismissed for failure to exhaust. Vasquez, 684 F.3d at 434 (district court properly dismissed federal prisoner's § 2241 petition because he failed to exhaust his administrative remedies); Garcia v. United States, 518 Fed. Appx. 78, 79 (3d Cir. 2013) (same); Wilson v. Strada, 474 Fed. Appx. 46, 48 (3d Cir. 2012) (same). III. Conclusion
As noted by Respondents, to the extent that Petitioner has overpaid his restitution amount, he may recover the overpayment by filing a motion with the sentencing court. See ECF No. 12-1 ¶ 9.
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).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: April 20, 2020