Cartagena v. Terris

Filing 10

ORDER DISMISSING 1 Petition for Writ of Habeas Corpus. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSE RAMOS CARTAGENA,
Petitioner,

Civil No. 17-13271
Hon. Terrence G. Berg

v.
J. A. TERRIS,
Respondent.
_______________________________/
ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
This matter is before the Court on Petitioner Jose Ramos
Cartagena’s pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. Ramos Cartagena, who is presently incarcerated at the
Federal Correctional Facility in Milan, Michigan, argues that he is
actually innocent of 18 U.S.C. § 924(c)(1), which prohibits using a firearm
during a crime of violence. Respondent, through the United States
Attorneys’ office, has filed an answer in opposition arguing that the
petition is not properly filed under 28 U.S.C. § 2241, and that the armed
bank robbery conviction was a crime of violence supporting Ramos
Cartagena’s conviction. The Court finds the petition is not properly filed
under § 2241 and, in the alternative, that the petition lacks merit.

I. Background
In 1998, Ramos Cartagena was convicted by a jury in the District
of Puerto Rico of two counts of armed bank robbery, 18 U.S.C. § 2113(a)
and (d); one count of assault, 18 U.S.C. § 2114(a); one count of breaking
and entering, 18 U.S.C. § 2117; and one count of using a firearm in
relation to a crime of violence, 18 U.S.C. § 924(c)(1). See United States v.
Ramos-Cartagena,1 No. 3:97-cr-00110 (Dkt. 286). The district court
sentenced Ramos Cartagena to concurrent sentences of 235 months for
armed bank robbery and assault, and 120 months for breaking and
entering; and a consecutive sentence of 120 months for the § 924(c)
conviction.
Ramos Cartagena appealed to the First Circuit Court of Appeals.
The Court of Appeals affirmed his convictions and sentences. United
States v. Mojica-Baez, et al., 229 F.3d 292, 296-97 (1st Cir. 2000). Ramos
Cartagena then filed a motion to vacate his sentence under 28 U.S.C.
§ 2255. Ramos-Cartagena, No. 3:97-cr-00110 (Dkt. 495). The district
court found the claims meritless and dismissed the motion. Id. at Dkt.
512.
In the District Court of Puerto Rico and First Circuit Court of Appeals proceedings,
Petitioner’s name is hyphenated. Ramos Cartagena did not hyphenate his name in
the case caption when he filed this petition. The Court, therefore, will not use a
hyphen when referring to Petitioner here, but when citing cases from other
jurisdictions, the Court will use a hyphen in accordance with the dockets of those
courts.
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In 2013, Ramos Cartagena filed a second motion under § 2255,
seeking to vacate Counts 2 and 5 of his convictions under Alleyne v.
United States, 570 U.S. 99 (2013). The district court dismissed the
petition without prejudice because Ramos Cartagena did not obtain
permission from the First Circuit Court of Appeals to file a successive
§ 2255 petition. Ramos-Cartagena, No. 3:97-cr-00110 (Dkt. 592). Ramos
Cartagena filed a request for certificate of appealability (COA) and for
permission to file a second petition in the First Circuit Court of Appeals.
Id. at Dkt. 593. The Court of Appeals denied a COA and permission to
file a second petition. Ramos-Cartagena v. United States, No. 14-1154
(1st Cir. Jan. 26, 2015).
Ramos Cartagena filed a third § 2255 motion in 2017. He sought to
vacate his § 924(c) conviction and sentence based upon the Supreme
Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The
district court stayed the motion pursuant to a district-wide standing
order applicable to all § 2255 motions appointing the Officer of the
Federal Public Defender for the District of Puerto Rico to represent any
defendant who may qualify for relief under § 2255 in light of Johnson.
Ramos-Cartagena, No. 3:97-cr-00110 (Dkt. 621).
Ramos Cartagena also filed a motion in the First Circuit Court of
Appeals seeking authorization to file a successive § 2255 motion,
challenging his 18 U.S.C. § 924(c) conviction. The First Circuit denied
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authorization to file a successive § 2255 motion. Ramos-Cartagena, No.
16-1411 (1st Cir. Apr. 2, 2019).
On September 15, 2017, Petitioner filed the pending petition under
§ 28 U.S.C. § 2241. He argues that he is actually innocent of using a
firearm during and in relation to a crime of violence. 18 U.S.C. § 924(c).
II. Discussion
As stated above, Ramos Cartagena has filed this action as a habeas
petition under 28 U.S.C. § 2241. The proper avenue for relief on a federal
prisoner’s claim that his conviction and sentence were imposed in
violation of the federal constitution or federal law is a motion to vacate
or correct sentence under 28 U.S.C. § 2255. United States v. Peterman,
249 F.3d 458, 461 (6th Cir. 2001). A federal prisoner may bring a claim
challenging his conviction or the imposition of sentence under 28 U.S.C.
§ 2241 only if it appears that the remedy afforded under § 2255 is
inadequate or ineffective to test the legality of his detention. Charles v.
Chandler, 180 F.3d 753, 756 (6th Cir. 1999). Habeas corpus is not an
“additional, alternative, or supplemental remedy” to the motion to
vacate, set aside, or correct the sentence. Id. at 758. That a prisoner has
been denied permission to file a second or successive § 2255 motion does
not render § 2255 “inadequate or ineffective.” Wooten v. Cauley, 677 F.3d
303, 307 (6th Cir. 2012), citing Charles, 180 F.3d at 756. Thus, the First
Circuit’s denial of leave to file a second or successive petition does not
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entitle Ramos Cartagena to seek relief under § 2241.
Even if Ramos Cartagena’s petition were properly filed under
§ 2241, he would still not be entitled to relief. Ramos Cartagena argues
that he is “actually innocent” of his conviction under 18 U.S.C. § 924(c),
because, under Johnson v. United States, 135 S. Ct. 2551 (2015) and
Mathis v. United States, 136 U.S. 2243 (2016), his conviction for armed
bank robbery no longer qualifies as a “crime of violence.” In Johnson, the
Supreme Court held that the “residual clause” definition of “violent
felony”

under

the

Armed

Career

Criminal

Act

(ACCA)

was

unconstitutionally vague. 135 S. Ct. at 2555-58. In Mathis, the Supreme
Court held that a prior conviction does not qualify as the generic form of
a predicate violent felony offense listed in the ACCA if an element of the
crime of conviction is broader than an element of the generic offense. 136
S. Ct. at 2251.
Ramos Cartagena argues that § 924(c) suffers from the same defects
as ACCA’s residual clause. Section 924(c) imposes a mandatory minimum
sentence for using, carrying, or, in furtherance of the crime, possessing a
firearm “during and in relation to any crime of violence.” 18 U.S.C.
§ 924(c)(1)(A). The statute defines “crime of violence” as an offense that
is a felony and:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of another,
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or
(B) that by its nature, involves a substantial risk that physical
force against the person or property of another may be used
in the course of committing the offense.
18 U.S.C. § 924(c)(3).
“Part (A) is referred to as the ‘force clause,’ while Part (B) is referred
to as the ‘residual clause.’” United States v. Johnson, 726 F. App’x 393,
407 (6th Cir. 2018). Neither Johnson nor Mathis invalidates Ramos
Cartagena’s § 924(c) conviction.
To determine whether a crime is a “crime of violence” under
§ 924(c)(3)(A), courts apply the “modified categorical approach.” In re
McComb, 691 F. App’x 819, 820 (6th Cir. 2016). Using this approach, the
Sixth Circuit has held that “[b]ank robbery by ‘force and violence’ plainly
involves ‘the use, attempted use, or threatened use of physical force,’” and
that bank robbery by intimidation involves the threat to use force. United
States v. McBride, 826 F.3d 293, 295-296 (6th Cir. 2016). Bank robbery
by force, violence, or intimidation, therefore, qualifies as a “crime of
violence” under § 924(c)(3)(A). Id. The Supreme Court’s Mathis decision
did not invalidate the Sixth Circuit’s holding that bank robbery by force,
violence, or intimidation is a “crime of violence” McComb, 691 F. App’x at
820. Accordingly, because his bank robbery conviction is a “crime of
violence” under § 924(c), Ramos Cartagena is not entitled to relief under
§ 2241.
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III. Order
Petitioner has not shown that 28 U.S.C. § 2255 is inadequate or
ineffective to challenge the legality of his conviction. In addition, he has
not shown that he is actually innocent of § 924(c). The petition is
DISMISSED. Petitioner’s Motion to Grant Prompt Disposition, filed on
October 1, 2018, is DENIED AS MOOT.
SO ORDERED.
Dated: April 16, 2019

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed,
and the parties and/or counsel of record were served on April 16,
2019.
s/A. Chubb
Case Manager

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