Green v. Warden MDC Brooklyn et al

Filing 4

ORDER re 1 Petition for Writ of Habeas Corpus filed by Mark Green. For the reasons set forth in the attached Order, the court finds that it is without jurisdiction to hear Mr. Greens petition for a writ of audita querela or habeas corpus under Section 2241, and that any motion by petitioner to vacate his conviction must be brought pursuant to Section 2255. The court orders petitioner to notify the court within 30 days as to whether he consents to the recharacterization of his petition as a motion pursuant to 28 U.S.C. § 2255. Petitioner is advised that recharacterization of his petition as a Section 2255 motion means that any subsequent Section 2255 motion will be subject to the restrictions on second or successive motions. If petitioner agrees to the conversion of his petition into a Section 2255 motion, he may file an amended motion that contains all the claims he believes he has, and this court will transfer the action to the Eastern District of Pennsylvania pursuant t o Section 2255 and 28 U.S.C. § 1406. If petitioner neither consents to the conversion nor withdraws his petition within 30 days, this petition will be dismissed for lack of jurisdiction. The court offers no opinion on the merits of petitioners claims. The Clerk of Court is respectfully directed to serve petitioner with a copy of this Order at his current address and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 2/13/2015. (Alagesan, Deepa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------ X
ORDER
15-CV-460 (KAM)(LB)

MARK GREEN,
Petitioner,
-againstWARDEN MDC BROOKLYN and UNITED
STATES ATTORNEYS OFFICE,
Respondents.
------------------------------------ X
MATSUMOTO, United States District Judge:

Pro se petitioner Mark Green, who is presently
incarcerated at FCI Otisville, 1 filed a petition seeking a writ
pursuant to 28 U.S.C. § 1651 (the “All Writs Act”) or, in the
alternative, a writ of audita querela or writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (“Section 2241”). 2
(“Pet.”).)

(See ECF No. 1

In his application, petitioner challenges a

conviction entered in the United States District Court for the
Eastern District of Pennsylvania.

Because, as discussed below,

(1) the remedies petitioner seeks are unavailable to him and (2)
petitioner can still pursue a timely motion pursuant to 28
U.S.C. § 2255, the court orders Mr. Green to advise the court

1

Petitioner lists his current address as the Metropolitan Detention Center
(“MDC”) in Brooklyn, New York. The Federal Bureau of Prisons Inmate Locator
indicates that Mr. Green is currently incarcerated at FCI Otisville.
2

Although the petitioner submitted a form used for Section 2241 petitions,
his attached memorandum of law specifies that he seeks a writ of audita
querela or relief under either the All Writs Act or Section 2241. (See ECF
No.1 at 7.)

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within 30 days as to whether he consents to the recharacterization of his petition as a motion pursuant to 28
U.S.C. § 2255.

See Cephas v. Nash, 328 F.3d 98, 104 (2d Cir.

2003).
BACKGROUND
On November 4, 2009, petitioner was convicted in the
United States District Court for the Eastern District of
Pennsylvania of one count of conspiracy to commit access device
fraud, in violation of 18 U.S.C. § 1029(b)(2); two counts of
unauthorized use of an access device, in violation of 18 U.S.C.
§ 1029(a)(2); and one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1).

See U.S. v. Green, No. 08

CR 44, 2011 WL 1877299, at *1 (E.D. Pa. May 16, 2011).

The

United States Court of Appeals for the Third Circuit affirmed
the conviction, and the United States Supreme Court denied
certiorari.

United States v. Green, 516 F. App’x 113 (3d Cir.

2013), cert. denied, 134 S.Ct. 2818 (2014).
This court received the instant petition on January
28, 2015.

In it, petitioner challenges his conviction in the

Eastern District of Pennsylvania, arguing that the delay between
his indictment and the trial violated the Speedy Trial Act.
Petitioner requests that this Court vacate his conviction and
order his immediate release.

(Pet. at 6.)

Petitioner styles

his petition as one pursuant to the All Writs Act and Section

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2241, and argues that 28 U.S.C. § 2255 (“Section 2255”) is
inadequate to test the legality of his detention because the
court of conviction and appellate court have “overlook[ed] a
Constitutional violation” by miscalculating time on the speedy
trial clock in deciding petitioner’s direct appeal.

(Pet. at

11-12.)
DISCUSSION
The instant petition challenges the validity of
petitioner’s criminal conviction and sentence.

Such a challenge

is properly brought as a writ of habeas corpus pursuant to
Section 2255.

Although Section 2241 permits habeas corpus

review for federal prisoners “in custody in violation of the
Constitution or laws or treaties of the United States,” 28
U.S.C. § 2241(c)(3), “as a general rule, federal prisoners must
use § 2255 instead of § 2241(c)(3) to challenge a sentence as
violating the Constitution or laws of the United States.”
Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001); Geronimo
v. Rushing, Nos. 11-cv-1121, 14-cv-2221, 2014 WL 4678253, at *8
(E.D.N.Y. Sept. 19, 2014); see also 28 U.S.C. § 2255(a) (“A
prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution
or laws of the United States, or that the court was without
jurisdiction to impose such sentence, . . .

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may move the court

which imposed the sentence to vacate, set aside or correct the
sentence.”).

Section 2255, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), contains several
gatekeeping provisions, including strict requirements for
bringing successive petitions.
Section 2255(e) contains a provision (the “Savings
Clause”) that allows a federal prisoner challenging his
conviction or sentence to file a motion pursuant to Section
2241(c)(3) in rare circumstances if he can show that the
remedies under Section 2255 are inadequate or ineffective and
“when the failure to allow for some form of collateral review
would raise serious constitutional questions.”
United States, 124 F.3d 361, 377 (2d Cir. 1997).

Triestman v.
However, in

order to invoke the Savings Clause, a petitioner must do more
than show that he is unable to pursue relief under Section 2255.
“[Section] 2255 is not inadequate or ineffective, such that a
federal prisoner may file a § 2241(c)(3) petition, simply
because a prisoner cannot meet the AEDPA’s gate-keeping
requirements.”

Jiminian, 245 F.3d at 147-148.

The Second

Circuit, noting that the types of cases raising “serious
constitutional questions” warranting Section 2241 jurisdiction
would be relatively few, has recognized only one such category:
“cases involving prisoners who (1) can prove ‘actual innocence
on the existing record,’ and (2) ‘could not have effectively

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raised [their] claims of innocence at an earlier time.’”

Cephas

v. Nash, 328 F.3d 98, 104 (2d Cir. 2003) (quoting Triestman, 124
F.3d at 363).
Similarly, “[a] writ of audita querela is an
extraordinary remedy under the All Writs Act, 28 U.S.C. §
1651(a), and is generally available only if ‘the absence of any
avenue of collateral attack would raise serious constitutional
questions about the laws limiting those avenues.’” 3 United States
v. Quintieri, 547 F. App’x 32, 33 (2d Cir. 2013) (quoting United
States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007)).

A writ of

audita querela is generally unavailable to review a criminal
conviction where the claims can be raised in a motion pursuant
to Section 2255.

See id.

In this case, petitioner is clearly challenging the
legality of his underlying conviction.

Although petitioner

claims that Section 2255 is inadequate due to the decisions
rendered by the District Court for the Eastern District of
Pennsylvania and the Third Circuit in his criminal case, he has
not demonstrated that Section 2255 is unavailable to him.

As

petitioner acknowledges, he is not time-barred from filing a
Section 2255 motion to challenge his conviction.

The fact that

petitioner’s claims were previously denied by both the District
3 The court notes that the All Writs Act “does not confer an independent
basis of jurisdiction; it merely provides a tool courts need in cases over
which jurisdiction is conferred by some other source.” United States v.
Tablie, 166 F.3d 505, 506-07 (2d Cir. 1999).

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Court for the Eastern District of Pennsylvania and the Third
Circuit on direct appeal does not itself render relief pursuant
to Section 2255 inadequate or ineffective.

Thus, Section 2255

is still available to petitioner, there is no “gap” in the
current system of post-conviction relief, and a writ of audita
querela is not appropriate.

Furthermore, even if the court were

to find that collateral review under Section 2255 were
unavailable to petitioner, petitioner has failed to present any
valid grounds for operation of the Savings Clause – namely, any
claim of actual innocence – that would permit him to seek relief
under Section 2241(c)(3).
Accordingly, the court finds that it is without
jurisdiction to hear Mr. Green’s petition for a writ of audita
querela or habeas corpus under Section 2241, and that any motion
by petitioner to vacate his conviction must be brought pursuant
to Section 2255.

Therefore, the court orders petitioner to

notify the court within 30 days as to whether he consents to the
recharacterization of his petition as a motion pursuant to 28
U.S.C. § 2255.

See Cephas, 328 F.3d at 104 (“Where a pro se

prisoner can still pursue a timely § 2255 motion, a district
court may not construe an improperly filed § 2241 petition as a
§ 2255 motion without notice to the prisoner, who can then
decide either to agree to the recharacterization or to withdraw
his filing.”).

Petitioner is advised that recharacterization of

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his petition as a Section 2255 motion means that any subsequent
Section 2255 motion will be subject to the restrictions on
“second or successive” motions.
If petitioner agrees to the conversion of his petition
into a Section 2255 motion, he may file an amended motion that
contains all the claims he believes he has, and this court will
transfer the action to the Eastern District of Pennsylvania
pursuant to Section 2255 and 28 U.S.C. § 1406.

If petitioner

neither consents to the conversion nor withdraws his petition
within 30 days, this petition will be dismissed for lack of
jurisdiction.

The court offers no opinion on the merits of

petitioner’s claims.

The Clerk of Court is respectfully

directed to serve petitioner with a copy of this Order at his
current address and note service on the docket.

SO ORDERED.
Dated:

February 13, 2015
Brooklyn, New York
_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

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