Raposo v. USA

Filing 8

ORDER denying 1 Petition for Writ of Habeas Corpus filed by Alberto Raposo. See attached memorandum of decision. The clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 10/14/2014.(Nadler, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ALBERTO RAPOSO,
Petitioner,
v.
USA,
Respondent.

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PRISONER
CASE NO. 3:14cv1447 (VLB)
October 14, 2014

RULING ON PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Alberto Raposo, currently confined at the Federal
Correctional Institution in Danbury, Connecticut, filed this habeas corpus action,
pursuant to 28 U.S.C. § 2241, challenging his conviction for felony murder. For
the reasons that follow, the petition is dismissed.
I.

Procedural Background
The petitioner was convicted of arson resulting in the death of a firefighter,

in violation of 18 U.S.C. § 844(i). He was sentenced to a term of imprisonment of
254 months followed by a five-year term of supervised release. The conviction
was affirmed on direct appeal. United States v. Raposo, 205 F.3d 1326 (2d Cir.
2000), cert. denied, 530 U.S. 1210 (2000). The petitioner then filed a petition
pursuant to 28 U.S.C. § 2255, which was denied initially and on appeal. See Pet.
at 5. In December 2013, the petitioner sought leave to file a second section 2255
petition. Leave was denied. See id.

II.

Standard of Review
A motion filed pursuant to 28 U.S.C. § 2255 is the proper vehicle for a

federal prisoner “claiming the right to be released upon the ground . . . that the
court was without jurisdiction to impose [the] sentence.” 28 U.S.C. § 2255(a).
See Poindexter v. Nash, 333 F.3d 372, 377-78 (2d Cir. 2003) (noting general rule
that federal prisoner must use section 2255 rather than section 2241 to challenge
constitutionality of conviction or sentence). A habeas petitioner can seek relief
under section 2241 only if the remedy provided by section 2255 is “inadequate or
ineffective” to test the legality of his detention and the “failure to allow for
collateral review would raise serious constitutional questions.” Middleton v.
Schult, 299 F. App’x 94, 95 (2d Cir. 2008) (quoting Triestman v. United States, 124
F.3d 361, 377 (2d Cir. 1997)) (internal quotations omitted).
A section 2255 motion is not “inadequate or ineffective” merely because
the petitioner does not meet this section’s stringent gate-keeping requirements.
See Bryce v. Scism, No. 3:09CV2024(WWE), 2010 WL 5158559, at *3 (D. Conn.
Dec. 13, 2010) (motion pursuant to section 2255 is not inadequate or ineffective
because prisoner is procedurally barred from filing section 2255 motion). Rather,
the exception provided under section 2255 is extremely narrow and has been held
to apply only in unusual situations. The Second Circuit has recognized an
exception only where a prisoner can prove actual innocence on the existing

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record and could not have raised his claim of innocence at an earlier time. See
id. (citing Triestman, 124 F.3d at 363).
III.

Discussion
The petitioner is challenging his conviction. Thus, his proper recourse is a

motion filed pursuant to section 2255. The petitioner already has filed a motion
pursuant to this section in the United States District Court for the Southern
District of New York. See Raposo v. United States, No. 01 Civ. 5870(DAB), 2004
WL 1043075 (S.D.N.Y. May 7, 2004). He recently filed a request for leave in the
Second Circuit to file a second section 2255 motion asserting the same grounds
raised in this petition. See Raposo v. United States, No. 13-4687 (2d Cir. Jan. 22,
2014) (Dkt. #6). The request was denied. See id. (Dkt. #22).
Immediately following that denial and before the mandate issued, the
petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in
the United States District Court for the Middle District of Pennsylvania, asserting
the same claims. That court concluded that section 2241 could not be used to
circumvent the gatekeeping requirements of section 2255 and dismissed the
petition. See Raposo v. United States, Civil Action No. 3:14-0303, 2014 WL
671258, at *1-2 (M.D. Pa. Feb. 21, 2014), aff’d 574 F. App’x 70 (3d Cir. 2014).
The petitioner has refiled his section 2241 petition. He contends that he
became aware of a change in the law after the conclusion of his direct appeal and
section 2255 motion. The petitioner was aware of the law when he filed his
motion for leave to file a second section 2255 motion and his section 2241

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petition in Pennsylvania. Both courts rejected the claims. The fact that the
petitioner was denied leave to file a second section 2255 motion does not render
section 2255 inadequate to protect his rights. See Jiminian v. Nash, 245 F.3d 144,
147-48 (2d Cir. 2001); Bryce, 2010 WL 5158559, at *3. As the petitioner has not
shown that section 2255 is inadequate or ineffective, this petition is dismissed.
IV.

Conclusion
The petition is DISMISSED as the Court lacks jurisdiction to entertain the

claims. Any appeal of this order would not be taken in good faith. Thus, a
certificate of appealability will not issue. The Clerk is directed to enter judgment
and close this case.
_________/s/_____________
Vanessa L. Bryant
United States District Judge
SO ORDERED this 14th day of October 2014, at Hartford, Connecticut.

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