Opinion
1:20-cv-86
04-08-2021
VINCENT MICHAEL MARINO, Petitioner v. WARDEN TRATE, 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 Vincent Michael Marino (Petitioner) pursuant to 28 U.S.C. § 2241 be dismissed for lack of jurisdiction.
At the time that he initiated this action, 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 December 12, 1999, a jury in the United States District Court for the District of Massachusetts (the “sentencing court”) convicted Marino of three counts: racketeering in violation of 18 U.S.C. §§ 2 and 1962(c) (Count One); racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count Two); and conspiring to murder thirteen people in aid of racketeering in violation of 18 U.S.C. § 1959 (Count Three). See ECF No. 20-3. On May 8, 2000, the sentencing court sentenced Marino to a term of incarceration of 420 months followed by three years of supervised release. Id. The Court of Appeals for the First Circuit affirmed the judgment. See United States v. Marino, 277 F.3d 11 (1st Cir. 2002).
Marino's subsequent attempts to challenge his conviction were aptly summarized in a recent decision dismissing one of his prior § 2241 motions:
[After his conviction, ] Petitioner filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 on June 30, 2003 in the United States District Court for the District of Massachusetts. Marino v. United States, Case No. 1:03-cv-11657, Doc. No. 1. The district court denied petitioner's § 2255 motion and the First Circuit affirmed. Id. at Doc. Nos. 23, 34.
Additionally, petitioner has filed a number of petitions under § 2241 seeking habeas relief, including petitions in the Eastern District of New York, the District of Columbia, the Western District of Oklahoma, the Western District of Louisiana, as well as the instant petition filed in this district. Marino v. United States, Case Nos. 1:07-cv-12069 and 1:07-cv-12070, Doc. No. 1 (transferred to D. Mass. as successive § 2255); Marino v. Martinez, Case No. 1:11-cv-1807, Doc. No. 1 (transferred to S.D. W.Va.); Marino v. Kastner et al., 2010 WL 3522455, No. CIV10-664-R, (W.D. Okla. Sept. 8, 2010); Marino v. Sherrod et al., 2012 WL 266855, Civil Action No 1:10-CV-01656 (W.D. La. Jan. 30, 2012); Marino v. Martinez, 2014 WL 5460613, Civil Action No. 1:12-00394 (S.D. W.Va. Oct. 27, 2014). None of these have been successful and most courts have found that petitioner's petitions actually seek relief offered under § 2255, rather than § 2241.Marino v. Masters, 2017 WL 891294, at *1 (S.D. W.Va. Mar. 6, 2017), aff'd, 707 Fed.Appx. 794 (4th Cir. 2018). In addition to the foregoing, the United States District Court for the District of New Jersey recently denied another § 2241 petition filed by Marino in Marino v. Ortiz, 2020 WL 3888124, at *1 (D.N.J. July 10, 2020), and he has another § 2241 petition simultaneously pending in this district at Marino v. Trate, 1:19-cv-299 (W.D. Pa.).
In the instant petition, Marino raises a single ground for relief, arguing that his racketeering convictions at Counts One and Two were unlawful because the government dismissed a cocaine trafficking charge against him with prejudice “after Marino's jury was sworn in & empaneled.” ECF No. 4 at 1. Marino suggests that, because the cocaine charges were dismissed at trial, the jury should have been precluded from finding that those crimes served as a “predicate act” for his racketeering convictions. Id. He also invokes the Double Jeopardy clause. Id. In response, Respondent maintains that Petitioner's petition must be dismissed for lack of jurisdiction. ECF No. 20. This matter is fully briefed and ripe for disposition.
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, Marino maintains that his constitutional rights were violated during his jury trial and at sentencing. 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 racketeering crimes based on an intervening decision of statutory construction issued by the United States Supreme Court. As noted in a recent decision rejecting one of Marino's other, nearly identical § 2241 petitions, “[i]t remains a crime to participate in a RICO conspiracy; therefore, Petitioner fails the first Bruce requirement.” Marino, 2020 WL 3888124, at *3. See also Marino, 2017 WL 891294, at *2 (holding that Marino's § 2241 petition was “plainly one that challenge[d] the validity of his conviction, rather than its execution” and that he had not “demonstrated that he [could] avail himself of the savings clause in § 2255(e).”). Indeed, 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.”); Marino, 2020 WL 3888124, at *3 (rejecting Marino's prior § 2241 petition because he failed to “describe [a] intervening change in substantive law” or demonstrate that relief under § 2255 was inadequate or ineffective). Because Marino 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.
Even if Marino had identified an intervening Supreme Court decision, he would be hard pressed to demonstrate that he “had no earlier opportunity to test the legality of his detention.” Bruce, 868 F.3d at 180. As noted in one of his prior § 2241 actions, “Petitioner's lengthy litigation history shows that he has had several opportunities to raise his claims. The savings clause does not apply to Petitioner merely because he has not been granted the relief he seeks.” Marino, 2020 WL 3888124, at *3.
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).