Herrold v. Quay
Filing
17
ORDER. A telephone conference is scheduled for April 21, 2015. This memorandum is being filed in advance of the conference in an attempt to make the conference as productive as possible. See attached order. Signed by Judge Robert N. Chatigny on 4/2/2015.(Saner, K)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GENE ALLEN HERROLD
V.
WARDEN QUAY
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:
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Case No. 3:14-CV-1067 (RNC)
ORDER
Petitioner, a federal prisoner proceeding pro se, brings
this action for a writ of habeas corpus pursuant to 28 U.S.C. §
2241 challenging the legality of his conviction and sentence for
use of a firearm during and in relation to a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1).
The Government
urges that the petition should be treated as a second or
successive motion under 28 U.S.C. § 2255 and dismissed for lack
of jurisdiction because it has been filed without authorization
from the Court of Appeals.
Petitioner opposes treating his §
2241 petition as a second or successive § 2255 motion and
contends that he qualifies for relief under § 2241 on the ground
that he is innocent of using a gun during a drug offense in
violation of § 924(c)(1) and thus his continued incarceration
violates the Eighth Amendment and the Due Process Clause of the
Fifth Amendment.
21, 2015.
A telephone conference is scheduled for April
This memorandum is being filed in advance of the
conference in an attempt to make the conference as productive as
possible.
I. Background
In 1992, petitioner was convicted after a jury trial in the
Middle District of Pennsylvania of possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1), and use of a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1).
United States v. Herrold, No. 91-cr-71 (M.D. Pa.).
See
The evidence
established that he sold a quantity of cocaine to an informant in
a vehicle then returned to his nearby residence where he was soon
arrested and a pistol was seized.
See id.
He received a total
effective sentence of 391 months’ imprisonment, which included a
mandatory consecutive 60 month term for the violation of §
924(c), a term he is currently serving at FCI Danbury.
Petitioner claims that his continued incarceration is illegal
because the evidence at his trial was insufficient to support a
conviction under § 924(c)(1).
See Pet. (ECF No. 1).
He relies
on Bailey v. United States, 516 U.S. 137 (1995), decided
approximately two years after his trial, which held that to
obtain a conviction under § 924(c)(1), the Government must
present “evidence sufficient to show active employment of the
firearm by the defendant, a use that makes the firearm an
operative factor in relation to the predicate offense.”
2
516 U.S.
at 143.1
Prior to Bailey, a person could be convicted under
924(c)(1) if the firearm was accessible for use during the
underlying drug transaction.
Petitioner filed his first § 2255 motion before Bailey was
decided.2
Under AEDPA, a second or successive motion under §
2255 is permitted only if it is based on newly discovered
evidence or a new rule of constitutional law.
28 U.S.C. § 2255.
Petitioner’s claim does not fit within either of these exceptions
permitting review of a second or successive motion under § 2255.
His claim is that the evidence at his trial failed to show that
he actively used the pistol during the predicate drug transaction
as required to obtain a conviction under Bailey.3
Moreover,
Bailey does not set forth a new rule of constitutional law but
simply interprets a statute.
See Triestman v. United States, 124
F.3d 361, 372-73 (2d Cir. 1997).
Thus, review of petitioner’s
1
The Supreme Court has ruled that the decision in Bailey
applies retroactively to all prisoners convicted under the
statute. Bousley v. United States, 523 U.S. 614 (1998).
2
The docket sheet in United States v. Herrold, No. 91-cr-71
(M.D. Pa.) shows that three § 2255 petitions were filed before
Bailey was decided. See Pet. For Writ of Habeas Corpus (ECF No.
84) filed Aug. 19, 1992; § 2255 Motion, 94-cv-795 (ECF No. 130)
filed Feb. 27, 1994; Motion to Vacate Sentence (2255), 95-cv-215
(ECF No. 140) filed Feb. 13, 1995.
3
More specifically, petitioner contends that the trial
evidence failed to establish that the pistol found in his
residence was actively employed in connection with the predicate
drug offense, which took place in a vehicle some distance from
the residence. Excerpts of trial testimony appended to
petitioner’s brief provide support for his position.
3
claim is not available by means of a second or successive § 2255
motion.4
Petitioner urges that similarly situated prisoners have
obtained review of their Bailey claims pursuant to the savings
clause in § 2255, which allows a prisoner to seek a writ of
habeas corpus under 28 U.S.C. § 2241 when a motion under § 2255
“is inadequate or ineffective to test the legality of his
detention.”
28 U.S.C. § 2255.
In Triestman, the Second Circuit
recognized that the savings clause exists "to preserve habeas
corpus for federal prisoners in those extraordinary instances
were justice demands it."
124 F.3d at 378.5
The Court
determined that the savings clause entitled the prisoner in that
case to bring a Bailey claim under § 2241.
The Court observed
4
The petition discloses that the Bailey claim advanced here
was previously presented to the Middle District of Pennsylvania
under § 2255. See Pet. (ECF No. 1) at 3. That motion was
dismissed without prejudice as a second or successive § 2255
motion for which authorization had not been obtained from the
Third Circuit. Petitioner then sought authorization to file the
§ 2255 motion from the Third Circuit but his request was denied,
presumably because his motion did not present either of the two
grounds for permitting a second or successive § 2255 motion (i.e.
new evidence of actual innocence or a new rule of constitutional
law). All Circuits agree that the exceptions to the rule against
successive § 2255 motions do not apply to claims of actual
innocence based on Bailey.
5
As the Court acknowledged, a motion under § 2255 is not
“inadequate or ineffective” merely because the prisoner cannot
meet procedural requirements for filing a second or successive §
2255 motion. See Thompson v. Choinski, 525 F.3d 25, 209 (2d Cir.
2008); Adams v. United States, 372 F.3d 132, 134-35 (2d Cir.
2004); Pointdexter v. Nash, 333 F.3d 372, 378 (2d Cir. 2003).
4
that review of the claim was previously unavailable and
precluding review would potentially call into question the
constitutionality of AEDPA’s restrictions on second or successive
motions under § 2255.
The Third Circuit, encompassing the
district where the petitioner here was convicted, agrees that the
savings clause entitles a prisoner to bring a Bailey claim under
§ 2241 when he has not had a previous opportunity to obtain
review of the claim.
See In re Dorsainvil, 119 F.3d 245, 251-52
(3rd Cir. 1997).6
Against this background, petitioner’s Bailey claim may be
reviewed under § 2241 provided he did not have an adequate
opportunity to obtain review of the claim earlier.
petitioner runs into difficulty.
This is where
The Second Circuit has
recognized that § 2255 is inadequate or ineffective only when an
inmate "(1) can prove actual innocence on the existing record and
(2) could not have effectively raised his claims of innocence at
an earlier time."
2003).
Cephus v. Nash, 328 F.3d 98, 104 (2d Cir.
The present petition is one of many petitioner has filed
challenging the legality of his 1992 conviction, including
6
The Third Circuit explained:
If, as the Supreme Court [has] stated . . . , it is a
”complete miscarriage of justice” to punish a defendant for an
act that the law does not make criminal, thereby warranting
resort to the collateral remedy afforded by § 2255, it must
follow that it is the same “complete miscarriage of justice” when
the AEDPA amendment to § 2255 makes that collateral remedy
unavailable. 119 F.3d at 252 (quoting Davis v. United States,
417 U.S. 333,346-47 (1974).
5
multiple filings under § 2241.
See United States v. Herrold, 401
Fed. App'x 629 (3d Cir. 2010) (affirming order denying motion to
dismiss indictment); Herrold v. Yost, 220 Fed. App'x 146 (3d Cir.
2007) (listing prior filings).
Petitioner acknowledges that he
has filed previous petitions under § 2241 in which his Bailey
claim could have been raised.
He states that he did not include
the claim in his previous § 2241 petitions because he did not
trust those courts.
See Reply (ECF No. 14) at 5.
This
litigation history distinguishes petitioner’s predicament from
that of the prisoners in Triestman and Dorsainvil.
There is no
indication that either of them had previously filed challenges to
their convictions under § 2241 while deliberately omitting claims
under Bailey.
Whether petitioner’s previous filings under § 2241 preclude
review of his claim is unclear.
The Second Circuit has indicated
that AEDPA may impose constraints on the filing of a second or
successive petition under § 2241.
See Simon v. United States,
259 F.3d 139, 142 (2d Cir. 2004).
Other Circuits have stated
that AEDPA’s gatekeeping provisions do not apply to § 2241
petitions.
See Perez Zayas v. INS, 311 F.3d 246, 255 (3d Cir.
2002); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000);
Volona v. United States, 138 F.3d 693, 694-95 (7th Cir. 1998).
But these courts have applied the abuse-of-the-writ doctrine to
preclude review of claims omitted from previous petitions.
6
In the Second Circuit, the Government bears the burden of
pleading abuse of the writ with “clarity and particularity.”
Lewis v. McElroy, 294 Fed. App'x 637, 640 (2d Cir. 2008).
See
When
this burden is met, a court must reach the merits of an abusive
petition when required by the “ends of justice.”
Id. (quoting
McClesky v. Zant, 499 U.S. 467, 485 (1991)).
It is troubling that petitioner may not be able to obtain
review of a potentially valid claim of actual innocence under
Bailey.
It goes without saying that he should not be imprisoned
for a nonexistent crime.
Even so, more than twenty years have
passed since Bailey was decided, and nearly twenty years have
passed since Triestman and Dorsainvil were decided.
During this
time, petitioner seems to have elected not to pursue his Bailey
claim while using § 2241 to pursue other claims.
Because he had
an opportunity to obtain review of his claim when he previously
challenged his conviction under § 2241, and chose to withhold the
claim, the Court may well lack jurisdiction to consider the claim
unless the “ends of justice” so require.
III. Conclusion
During the telephone conference, the parties will have an
opportunity to present their views on the matters set forth
above.
They should be prepared to do so.
In addition,
petitioner will be expected to explain why the Court has
jurisdiction to review his claim of actual innocence, even though
7
it apparently was deliberately omitted from previous petitions;
and the Government will be expected to explain why, assuming the
writ is abusive, review of petitioner’s claim on the merits is
not required by the “ends of justice.”
So ordered this day 2nd day of April 2015.
/s/RNC
Robert N. Chatigny
United States District Judge
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