Martinez v. Grondolsky

Filing 14

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Government's Motion to Dismiss or in the Alternative to Deny (Docket Entry # 7 ). The section 2241 petition (Docket Entry # 1 ) is DENIED for lack of jurisdiction under Henderson. Respondent's motion to dismiss (Docket Entry # 7 ) is ALLOWED insofar as it seeks to dismiss the petition for lack of jurisdiction; and otherwise DENIED as moot. Nothing in this Order should be construed to limit petitioner from filing a motion for a second or successive petition in the Eleventh Circuit. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JORGE F. MARTINEZ,
Petitioner,
CIVIL ACTION NO.
17-11216-MBB

v.
WARDEN JEFFREY GRONDOLSKY,
Respondent.

MEMORANDUM AND ORDER RE:
GOVERNMENT’S MOTION TO DISMISS OR IN
THE ALTERNATIVE TO DENY (DOCKET ENTRY # 7)

January 9, 2018
BOWLER, U.S.M.J.
Petitioner Jorge F. Martinez (“petitioner”), a prisoner at
the Federal Medical Center in Ayer, Massachusetts (“FMC Devens”),
filed this petition under 28 U.S.C. § 2241 (“section 2241”)
challenging the use of two state court convictions as predicate
offenses for a career offender sentencing enhancement under §
4B1.1 of the United States Sentencing Guidelines for controlled
substance convictions in United States v. Fernandez Martinez,
8:06-CR-466-T (M.D. Fla. Aug. 9, 2007) (sentence and judgment
imposed).

The Eleventh Circuit affirmed the convictions on

direct appeal.

See United States v. Fernandez Martinez, 2009 WL

524731, at *10 (11th Cir. Mar. 3, 2009) (unpublished).
Petitioner filed a prior, unsuccessful motion to vacate the

sentence on the basis of ineffective assistance of counsel under
28 U.S.C. § 2255 (“section 2255”).

See Martinez v. United

States, 8:10-CV-1735-T, 2011 WL 4502073, at *9 (M.D. Fla. Sept.
28, 2011).

He also filed an application for leave to file two

petitions for leave to file second and successive section 2255
motions on unrelated issues pursuant to 28 U.S.C. §§ 2255(h) and
2244(b)(3)(A) which were denied.

Martinez v. United States,

8:06-CR-466-T (M.D. Fla.) (Docket Entry ## 149, 151).

The

present petition filed under section 2241 asserts that section
2255 provides an inadequate and ineffective remedy thereby
warranting resort to section 2241 as permitted under section
2255’s savings clause.

See 28 U.S.C. § 2255(e).

As stated in

the petition, petitioner “invokes the Savings Clause Provision to
obtain relief based on the substantive change in law by the
Supreme Court in Mathis v. United States, 136 S. Ct. 2243 (2016);
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013); and
Begay v. United States, 128 S. Ct. 158 (2008).”

(Docket Entry #

1, p. 4).
The government moves to dismiss the petition on two grounds.
First, the government argues that this court lacks jurisdiction
because the section 2241 petition attacks the validity of his
Florida sentence and must be brought under section 2255 in the
Middle District of Florida.

(Docket Entry # 7).

Second, the

government submits that Beckles v. United States, 137 S. Ct. 886,
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895 (2017), forecloses petitioner’s argument that his prior state
court convictions pursuant to 28 U.S.C. § 1915 A(a) cannot serve
as predicate offenses.

(Docket Entry # 7).

On November 21, 2017, this court ordered the parties to file
supplemental briefing with respect to this court’s jurisdiction.
The parties responded with supplemental briefing on December 5,
2017.

The government’s motion (Docket Entry # 7) is therefore

ripe for review.
DISCUSSION
A federal prisoner may not challenge the legality of his
sentence through a writ of habeas corpus under section 2241
unless, under section 2255(e), often referred to as the “savings
clause,” the procedure under a section 2255 motion is “inadequate
or ineffective to test the legality of his detention.” 28 U.S.C.
§ 2255(e).

Recourse to the savings clause is permitted only “in

rare and exceptional circumstances,” such as those where the
restrictions on section 2255 motions would result in a “‘complete
miscarriage of justice.’”

Trenkler v. United States, 536 F.3d

85, 99 (1st Cir. 2008) (internal citation omitted).

“Most courts

have required a credible allegation of actual innocence to access
the savings clause.”

Id.

Petitioner’s inability to meet the

procedural requirements to bring a second or successive petition
under section 2255(h) alone does not provide access to the
savings clause.

See United States v. Barrett, 178 F.3d 34, 50
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(1st Cir. 1999).

Indeed, “post-conviction relief can be termed

‘inadequate’ or ‘ineffective’ only when, in a particular case,
the configuration of section 2255 is such ‘as to deny a convicted
defendant any opportunity for judicial rectification.’”

Trenkler

v. United States, 536 F.3d at 99 (citations omitted).
The petitioner in Henderson v. Grondolosky, No. 16-12459DJC, 2017 WL 4038392 (D. Mass. Sept. 12, 2017) (“Henderson”),
claimed, similar to petitioner, that his two underlying
controlled-substance convictions that triggered the career
offender sentencing enhancement under the United States
Sentencing Guidelines no longer applied because of the Supreme
Court’s holding in Mathis v. United States, 136 S. Ct. 2243
(2016).

The court in Henderson held that such claims did not

meet the savings clause requirement.
2017 WL 4038392, at *2-4.

Henderson v. Grondolosky,

As explained in Henderson, “when

considering career offender designation under U.S.S.G. § 4B1.1,
other circuits have found that absent an additional exceptional
circumstance, such as vacatur of a predicate conviction, postconviction change in the law affecting the sentencing court’s
determination of the guidelines range does not rise to a complete
miscarriage of justice.”
4038392, at *3.

Henderson v. Grondolosky, 2017 WL

Relying on Cuevas v. United States, 778 F.3d

267, 271 (1st Cir. 2015), the court in Henderson held that,
absent any exceptional circumstances, it had no jurisdiction over

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a section 2241 petition making a free-standing “‘Guidelinesmisapplication claim.’”
same reason:

Id.

Petitioner’s claim fails for the

that is, he brings a “‘Guidelines-misapplication

claim’” to which the savings clause is inapplicable in the
absence of any exceptional circumstances.

Henderson v.

Grondolosky, 2017 WL 4038392, at *3-4.
Petitioner’s reliance on that court’s acknowledgment
(notably after finding it had no jurisdiction) that Henderson had
an opportunity to bring some form of his argument in a section
2255 petition is a distinction without a substantive difference.
That is, this court has no jurisdiction over this type of claim
because there is no credible allegation of actual innocence, and
there are no exceptional circumstances that rise to a miscarriage
of justice to invoke the savings clause, such as the vacatur of
the underlying predicate convictions that qualified him as a
career offender under the Guidelines.

Accordingly, petitioner

may not access the savings clause and this court lacks
jurisdiction to adjudicate the section 2241 petition.
In addition, the petition attacks the validity of his
sentence and career offender sentencing enhancement, as stated by
the government (Docket Entry # 7, pp. 3-4).

The petition

therefore constitutes a second and successive petition which must
be filed in “the appropriate court of appeals,” 28 U.S.C. §
2255(h), as opposed to this court.

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See id. at *2 (construing

similar petition as attacking validity of sentence as opposed to
execution of sentence, the latter being subject to section 2241).
CONCLUSION
For the foregoing reasons, the section 2241 petition (Docket
Entry # 1) is DENIED for lack of jurisdiction under Henderson.
Respondent’s motion to dismiss (Docket Entry # 7) is ALLOWED
insofar as it seeks to dismiss the petition for lack of
jurisdiction; and otherwise DENIED as moot.

Nothing in this

Order should be construed to limit petitioner from filing a
motion for a second or successive petition in the Eleventh
Circuit.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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