Savageau v. FCI Berlin, Warden

Filing 11

/// ORDER granting 7 Motion to Dismiss. For the foregoing reasons, the court grants the respondent Warden's motion to dismiss the § 2241 petition (doc. no. 7), and dismisses all claims asserted in the petition and i ts addenda (doc. nos. 1, 8, 10), without prejudice to Savageau's ability to apply in the Eleventh Circuit for leave to file a second or successive § 2255 motion asserting the claims he asserts here. The clerk's office is directed to up date the docket to list an address for petitioner at the facility where the Federal Bureau of Prisons Online Inmate Locator indicates he is currently incarcerated, to enter judgment, and to close the case. So Ordered by Chief Judge Landya B. McCafferty.(de)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Vincent Savageau
v.

Civil No. 17-cv-386-LM

Opinion No. 2019 DNH 048
Robert Hazlewood, Warden,
Federal Correctional Institution,
Berlin, New Hampshire

O R D E R
Vincent Savageau, currently an inmate at the Federal
Correctional Institution (“FCI”) McKean in Pennsylvania, filed
this petition (doc. no. 1) for a writ of habeas corpus under 28
U.S.C. § 2241, while he was an inmate at FCI Berlin in New
Hampshire.

Before the court is the respondent Warden’s motion

to dismiss (doc. no. 7), to which Savageau objected (doc. no.
9).

Savageau filed two further documents (doc. nos. 8, 10),

which this court deems to be addenda to the petition, which this
court may screen to determine whether the claims in those
addenda are facially valid.

See LR 4.3(d)(4)(A); Rule 4 of the

Rules Governing Section 2254 Cases (“§ 2254 Rules”) (judge may
screen and then dismiss petition sua sponte if it plainly
appears on its face that petitioner is not entitled to relief);
see also § 2254 Rule 1(b) (§ 2254 Rules may apply to § 2241
petitions).

Background
At all relevant times, Savageau had the following
convictions for Massachusetts felonies, dating from 2002-2003:
one for unarmed assault with intent to rob, see Mass. Gen. Laws
ch. 265 § 20, one for assault and battery, see Mass. Gen. Laws
ch. 265 § 13(a), and two for possession of cocaine with intent to
distribute (hereinafter “Springfield cocaine convictions”), in
violation of Mass. Gen. Laws ch. 94C § 32A(a) and Mass. Gen. Laws
ch. 94C § 32C(a).

See Commonwealth v. Savageau, No. 0279CR00737

(Mass. Super. Ct., Hampden Cnty., filed Sept. 19, 2002)1;
Commonwealth v. Savageau, No. 0223CR009113 (Mass. Dist. Ct.,
Springfield, filed Aug. 22, 2002); Commonwealth v. Savageau, No.
0223CR002371 (Mass. Dist. Ct., Springfield, filed Feb. 28, 2002).
The procedural history in Savageau’s subsequently filed
federal criminal case, United States v. Savageau, No. 1:06-cr1The

docket for Commonwealth v. Savageau, No. 0279CR00737
(Mass. Super. Ct., Hampden Cnty.), indicates that Savageau
pleaded guilty on March 11, 2003 to one count of unarmed assault
with intent to rob, in violation of Mass. Gen. Laws ch. 265 § 20
and one count of assault and battery in violation of Mass. Gen.
Laws ch. 265 § 13(a). On one count, the court sentenced Savageau
to a House of Corrections sentence of 18 months, with one year to
serve and six months suspended, followed by probation for two
years, to run concurrently with a two-year probation sentence
imposed on the other count. The Superior Court further ordered
that those sentences would run concurrently with Savageau’s
sentences on the Springfield cocaine convictions. See
Commonwealth v. Savageau, No. 0279CR00737 (Mass. Super. Ct.,
Hampden Cnty., Mar. 11, 2003) (Dkt. No. 23) (citing Springfield
Dist. Ct. Case Nos. 0223CR009113 and 0223CR002371).

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00092 (S.D. Ga.) (“Criminal Case”), which related to armed bank
robberies that occurred in Georgia in April 2006, has been
described as follows:
On September 28, 2006, Petitioner [Savageau] pled
guilty to one count of conspiracy to rob commercial
businesses, in violation of 18 U.S.C. § 1951; two
counts of armed bank robbery, in violation of 18
U.S.C. §§ 2113(a) & (d); and one count of brandishing
a firearm during a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(ii). . . . Petitioner [was
sentenced] to serve concurrent 164-month terms of
imprisonment on the conspiracy and armed robbery
counts, and to serve a consecutive 84-month term of
imprisonment on the firearm count; a judgment was
entered on September 26, 2007. Because he had three
prior convictions — two for possession with intent to
distribute cocaine and one for assault — the range for
[Savageau’s] sentence under the United States
Sentencing Guidelines [“Guidelines”] was longer than
it would have been without the prior convictions.
Petitioner’s appointed counsel filed a notice of
appeal, following which he filed an appellate brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there were no arguable issues of merit
on appeal. The Eleventh Circuit agreed and affirmed
Petitioner’s convictions and sentences on September
17, 2008. United States v. Savageau, 292 F. App’x 895
(11th Cir. 2008) (per curiam).
Savageau v. United States, No. 1:12-cv-00016-WTM-WLB (“2255
Motion”), 2012 U.S. Dist. LEXIS 24920, at *1-*3, 2012 WL 630052,
at *1 (S.D. Ga. Feb. 7, 2012) (footnote and citations omitted),
R&R adopted, No. 1:12-cv-00016-WTM-WLB, 2012 U.S. Dist. LEXIS
24902, 2012 WL 629110 (S.D. Ga. Feb. 27, 2012).
Savageau asserts that the Presentence Investigation Report
(“PSR”) in his federal criminal case recommended that he be

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sentenced as a career offender under U.S.S.G. § 4B1.1, upon the
finding in the PSR that his two Springfield cocaine convictions
were “controlled substance offenses” and his Massachusetts
assault with intent to rob was a “crime of violence” under
U.S.S.G. § 4B1.2.

See Pet. (Doc. no. 1), at 13, 14.

Savageau

asserts that the court in his federal criminal case applied the
career offender Guidelines range in sentencing him, although he
asserts his state sentences for those convictions were imposed on
the same date.

Id. at 17.

Savageau filed a pro se motion seeking relief under 28
U.S.C. § 2255 in the Southern District of Georgia in 2011,
claiming that his state court convictions resulted from
ineffective assistance of counsel in those cases.

The court in

Savageau’s federal criminal case denied the motion as barred by
the statute of limitations and declined to issue a certificate of
appealability.

See 2255 Motion, 2012 WL 629110, at *1, 2012 U.S.

Dist. LEXIS 24902, at *1 (adopting Feb. 7, 2012 R&R, 2012 U.S.
Dist. LEXIS 24920, 2012 WL 630052).
In the instant § 2241 petition and its addenda, Savageau
asserts claims challenging the calculations underlying his 164month concurrent sentences on the conspiracy and armed bank
robbery convictions, and his consecutive 84-month sentence for
brandishing a firearm under 18 U.S.C. § 924(c), as follows:

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1.
Citing Mathis v. United States, 136 S. Ct. 2243
(2016), Savageau claims that his prior convictions did not
qualify him as a career offender under the Guidelines;
2.
Citing cases including United States v. Godin, 522
F.3d 133 (1st Cir. 2008), and United States v. RodríguezRosado, 854 F.3d 122 (1st Cir. 2017), Savageau claims his
prior state convictions should have been grouped for
purposes of calculating his sentence under the Guidelines
because he was sentenced for those convictions on the same
day;
3.
Citing Johnson v. United States, 135 S. Ct. 2551,
(2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and
noting the similarity between the definitions at issue in
those cases and the definitions of a “crime of violence”
under the Guidelines and 18 U.S.C. § 924(c)(3), Savageau
claims that his federal convictions did not qualify him: (a)
for an enhanced sentence under the Guidelines; or (b) for a
sentence under § 924(c);
4.
Citing Dean v. United States, 137 S. Ct. 1170
(2017), Savageau claims that the sentencing court did not
consider the length of his mandatory consecutive sentence
under § 924(c) in calculating his sentence for all of his
offenses;
5.
Savageau claims he did not possess a firearm
during the bank robberies at issue, invalidating his
sentence for brandishing a firearm during a crime of
violence under 18 U.S.C. § 924(c).
Discussion
I.

Savings Clause Jurisdiction
Pursuant to 28 U.S.C. § 2255, the trial court generally has

exclusive jurisdiction over a petitioner’s post-conviction
motions challenging the validity of his conviction or sentence.
Section 2255(e), known as the “savings clause,” preserves a
limited role for the court in the district where a federal inmate

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is in prison to consider a § 2241 petition challenging the
validity of his incarceration.
F.3d 34, 49 (1st Cir. 1999).

See United States v. Barrett, 178

The savings clause provides, in

pertinent part:
An application for a writ of habeas corpus in behalf
of a prisoner who is authorized to apply for relief by
motion pursuant to [§ 2255], shall not be entertained
. . . unless it . . . appears that the remedy by
motion [under § 2255] is inadequate or ineffective to
test the legality of his detention.
28 U.S.C. § 2255(e) (emphasis added).

Savageau, an FCI Berlin

inmate at the time his § 2241 petition was filed, seeks to invoke
this court’s “savings clause” jurisdiction under § 2255(e).
While the First Circuit has not provided examples of all
circumstances where savings clause jurisdiction might arise,2 the
court has clarified that § 2255’s “adequacy and effectiveness

2In

Sustache-Rivera v. United States, 221 F.3d 8, 16 & n.14
(1st Cir. 2000), the court noted that savings clause jurisdiction
has been found in cases where petitioners have asserted statutory
interpretation claims based on new Supreme Court precedent,
previously unavailable to them, that changed the law in the
circuit and narrowed the scope of a criminal statute in a manner
that would have rendered them not guilty of the offense of which
they were convicted. See id. (citing cases). But see McCarthan
v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1087
(11th Cir.) (en banc) (savings clause jurisdiction unavailable
despite adverse circuit precedent that has changed after first §
2255 motion, as petitioner “could have tested the legality of his
detention by requesting that we reconsider our precedent en banc
or by petitioning the Supreme Court for a writ of certiorari”),
cert. denied, 138 S. Ct. 502 (2017); Prost v. Anderson, 636 F.3d
578, 588 (10th Cir. 2011) (intervening changes in statutory
interpretation cannot render § 2255 inadequate or ineffective)).

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must be judged ex ante.”
99 (1st Cir. 2008).

Trenkler v. United States, 536 F.3d 85,

“[P]ost-conviction relief can be termed

‘inadequate’ or ‘ineffective’” for purposes of invoking the
savings clause “only when, in a particular case, the
configuration of section 2255 is such ‘as to deny a convicted
defendant any opportunity for judicial rectification.’”
(citation omitted).

Id.

The Trenkler court further observed that

courts have allowed access to the savings clause in only “rare
and exceptional circumstances, such as those in which strict
adherence” to the statutory limits on access to relief under
section 2255 “would result in a ‘complete miscarriage of
justice.’”

Id. (citation omitted).

Therefore, this court has

savings clause jurisdiction only if the configuration of § 2255
has effectively denied Savageau any opportunity for judicial
review and manifest injustice has resulted.

II.

Id.

Guidelines Sentence Claims (Claims 1, 2, 3(a))
Savageau’s Claims 1, 2, and 3(a) challenge the validity of

his advisory Guidelines sentence.

This court need not decide as

a preliminary matter whether the law in the Eleventh Circuit at
the time of Savageau’s conviction, direct appeal, or initial
§ 2255 motion, would have countenanced Savageau’s claims.

Even

if settled law at those times would have knocked the legs out

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from under Claims 1, 2, and 3(a), and even if the cases Savageau
cites changed the governing law in the Eleventh Circuit, such
changed Circuit precedent alone would not provide Savageau with
access to this court’s savings clause jurisdiction.

Savageau

must also show that his advisory Guidelines sentence was a
miscarriage of justice.
The court thus proceeds directly to consider whether
Savageau has demonstrated that any error in his Guidelines
sentence resulted in a miscarriage of justice.

In general, in

“collateral-review jurisprudence, the term ‘miscarriage of
justice’ means that the defendant is actually innocent.”

United

States v. Olano, 507 U.S. 725, 736 (1993); see also Trenkler, 536
F.3d at 99 (savings clause jurisdiction may arise over statutory
claims that narrow scope of statute of conviction if petitioner
makes “a credible allegation of actual innocence”).

Actual

innocence means factual innocence, not mere legal insufficiency.
Bousley v. United States, 523 U.S. 614, 623 (1998).
Savageau does not argue here that he is factually innocent
of the state offenses at issue, and none of those convictions
have been invalidated.

Savageau’s claims regarding Mathis,

Rodríguez-Rosado, Johnson, and Dimaya are premised on arguments
regarding the legal sufficiency of factors affecting his advisory
Guidelines sentence range; Savageau makes no claim here that he

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did not commit the Massachusetts offenses at issue, and he has
not disputed that the Springfield cocaine convictions in fact
qualified as controlled substance offenses.

Savageau has thus

not demonstrated that any manifest injustice resulted from the
use of his prior convictions to enhance his advisory Guidelines
sentence.

Furthermore, as to Claim 3(a), the Supreme Court’s

decision in Beckles v. United States, 137 S. Ct. 886 (2017),
clarifies that a due process void-for-vagueness claim challenging
a Guidelines sentence is not viable.

See id. at 892 (“the

Guidelines are not subject to a vagueness challenge under the Due
Process Clause”).

Accordingly, the claims in the § 2241 petition

identified here as Claims 1, 2, and 3(a) are properly dismissed
for lack of savings clause jurisdiction.

III. Section 924(c) Sentence Claims (Claims 3(b), 4, 5)
A.

Johnson and Dimaya (Claim 3(b))

Citing Johnson and Dimaya, Savageau claims that his federal
convictions did not qualify him for a seven-year minimum
consecutive sentence under the use-of-force or residual clauses
of 18 U.S.C. § 924(c)(3)(A) and (B).

Savageau’s claim in that

regard is facially invalid as his federal armed bank robbery
conviction qualifies as a “crime of violence” under 18 U.S.C.
§ 924(c)(3)(A).

See Hunter v. United States, 873 F.3d 388, 390

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(1st Cir. 2017) (“we hold that federal bank robbery, and a
fortiori federal armed bank robbery, are crimes of violence under
the force clause,” 18 U.S.C. § 924(c)(3)(A)); see also In re
Johnson, No. 18-11865-E, 2018 U.S. App. LEXIS 33028, at *9 (11th
Cir. Nov. 21, 2018) (“regardless of Dimaya’s potential effect on
§ 924(c)(3)(B)’s residual clause, [petitioner’s] § 924(c)
convictions are still valid because his companion offenses of
armed bank robbery still qualify as ‘crimes of violence’” under
§ 924(c)(3)(A) (citing In re Hines, 824 F.3d 1334, 1337 & n.5
(11th Cir. 2016)).

B.

Dean Claim (Claim 4)

Citing Dean, Savageau claims that the court in his federal
criminal case did not consider the length of his mandatory
minimum consecutive sentence under § 924(c) in calculating his
total sentence.

In Dean, the Supreme Court held that the

sentencing court is not precluded from considering, in
determining the sentence for the predicate crime of violence,
that § 924(c) imposes a mandatory consecutive sentence for the
§ 924(c) offense.

Dean, 137 S. Ct. at 1178.

The respondent

moves to dismiss that Dean claim.
Savageau’s Dean claim is not the type of claim that the
First Circuit has indicated could be cognizable under the savings

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clause.

Savageau does not argue that Dean altered the

interpretation of a statute in a way that rendered his conduct no
longer a criminal act, and he has not argued that his sentence
exceeded the statutory maximum for his offenses.

Cf. Trenkler,

536 F.3d at 99; Sustache-Rivera, 221 F.3d at 16 & n.14.
Furthermore, Savageau has not shown that the substance of his
Dean argument was previously unavailable to him at the time of
his sentencing, direct appeal, or first § 2255 motion.

Finally,

Dean has not been recognized as retroactively applicable to cases
on collateral review by any court that has addressed that
question.

See Beasley v. Werlich, No. 18-cv-1125-DRH, 2018 U.S.

Dist. LEXIS 113486, at *3-*4, 2018 WL 3348961, at *4 (S.D. Ill.
July 6, 2018) (citing cases); see also Habeck v. United States,
741 F. App’x 953, 954 (4th Cir. 2018), cert. denied, No. 18-7920,
2019 WL 635480 (U.S. Mar. 18, 2019) (petitioner’s Dean claim
“fails to meet the requirements of the savings clause because
Dean has not been held to apply retroactively to cases on
collateral review”); United States v. Dawson, 300 F. Supp. 3d
1207, 1214 (D. Or. 2018) (“Because the rule in Dean affects only
the sentencing judge’s discretion in calculating a sentence, it
is procedural under Schriro, not substantive, and does not
retroactively apply to [petitioner’s] case.” (citing Schriro v.
Summerlin, 542 U.S. 348, 352-53 (2004)).

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Savageau has not

demonstrated that his 248-month sentence has resulted in a
miscarriage of justice.

Claim 4 is thus dismissed for lack of

savings clause jurisdiction.

C.

Actual Innocence of Possessing Firearm (Claim 5)

Savageau maintains that he did not “possess” a firearm -- a
fact he states his co-defendant Demetrius Freeman confirmed in
clarifying Savageau’s role in the robberies -- and thus, Savageau
asserts, his sentence for brandishing a firearm during a crime of
violence under 18 U.S.C. § 924(c) must be vacated.

The Supreme

Court has characterized an actual innocence claim as a claim
asserting that “in light of new evidence ‘it is more likely than
not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.’”
(2006) (citation omitted).

House v. Bell, 547 U.S. 518, 536-37

Savageau’s current claim of not

having possessed a firearm does not undermine his conviction as
to Count Six, resulting from his guilty plea to the charge that
he and Freeman, “aided and abetted by each other and others,”
knowingly brandished a firearm in relation to an armed bank
robbery.
at 12.

Sept. 28, 2006 Plea Agt., Criminal Case (ECF No. 51),

Savageau makes no argument that he lacked foreknowledge,

at a time when he could have walked away from the crime, that his
co-defendant would brandish a firearm during the armed bank

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robbery.
(2014).

Cf. Rosemond v. United States, 572 U.S. 65, 78–79
As such, Savageau’s claim of not possessing a firearm

does not amount to a claim supported by “new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence,” that shows
his factual innocence.

Schlup v. Delo, 513 U.S. 298, 324 (1995).

As nothing in the record suggests that Savageau’s case presents a
colorable claim of actual innocence with respect to his aiding
and abetting an armed bank robbery during which a firearm was
brandished, Savageau has not shown that the savings clause allows
this court to exercise jurisdiction over the claims challenging
his sentence under § 924(c).

Conclusion
For the foregoing reasons, the court grants the respondent
Warden’s motion to dismiss the § 2241 petition (doc. no. 7), and
dismisses all claims asserted in the petition and its addenda
(doc. nos. 1, 8, 10), without prejudice to Savageau’s ability to
apply in the Eleventh Circuit for leave to file a second or
successive § 2255 motion asserting the claims he asserts here.
The clerk’s office is directed to update the docket to list an
address for petitioner at the facility where the Federal Bureau

13

of Prisons Online Inmate Locator indicates he is currently
incarcerated, to enter judgment, and to close the case.
SO ORDERED.

_______________________________
Landya B. McCafferty
United States District Judge
March 20, 2019
cc:

Vincent Savageau, pro se
Seth R. Aframe, Esq.

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