Santiago v. Sauers

Filing 4

MEMORANDUM - dismissing petition for writ of H/C/ (See memo for complete details.) Signed by Honorable William W. Caldwell on 6/12/13. (am)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
BILLY SANTIAGO,
Petitioner
vs.
DELBERT SAUERS,
Respondent

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CIVIL NO. 1:CV-13-0683
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Petitioner, Billy Santiago, an inmate at the Allenwood Low Federal

Correctional Institution in White Deer, Pennsylvania, filed this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Along with his petition, Santiago has
submitted a request to proceed in forma pauperis. Named as respondent is Delbert
Sauers, Allenwood’s warden.
The petition challenges a 1993 conviction in the United States District Court
for the Eastern District of New York, after a plea of guilty, to conspiring to obstruct
commerce by robbery, attempting to obstruct commerce by robbery, and using a firearm
during the commission of a crime of violence. Petitioner was sentenced to a total of 408
months (thirty-four years) of incarceration.
The petition focuses on the sentence imposed for the firearm violation, a
sentence of thirty years for using a machine gun, to run consecutively to the four-year term
for the two robbery offenses. It makes the following claims: (1) the thirty-year sentence on
the firearm offense was illegal because Petitioner was never charged with possession of a

machine gun; (2) the court, government and defense counsel erred in allowing the court to
decide that the firearm was a machine gun when that issue should have been decided by
a jury; (3) the thirty-year sentence was cruel and unusual under the Eighth Amendment
because it was grossly disproportionate to the offense and imposed by a court that lacked
the constitutional authority to do so; and (4) the thirty-year sentence violates his
Fourteenth Amendment right to equal protection because “in past appeals, the defendant
has been wrongly denied, when cases similar to the defendant’s are being found not guilty,
remanded, sentenced and resentenced for 18 U.S.C. 924(c)(1)(1992) because it is an
unconstitutional and ambiguous statute.” See Doc. 1, 2241 petition, ECF pp. 9-12.
Santiago asserts that these claims “were not previously presented for the fact that the
defendant lacks the knowledge of the law and was ignorant of his case.” Id., ECF p. 7.
Upon review of his filings, we conclude Santiago has failed to show that a
motion under 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his
detention. His § 2241 petition will therefore be summarily dismissed for lack of jurisdiction
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts, 28 U.S.C.A. foll. § 2254 (West Supp.).1

II.

Background
The Second Circuit’s opinion dealing with Petitioner’s appeal from the denial

of a postconviction motion provides some background:

1

Under Rule 1(b) of the Rules Governing Section 2254 Cases in the United States
District Courts, 28 U.S.C.A. foll. § 2254 (West Supp.), the rules governing petitions under 28
U.S.C. § 2254 can be applied to section 2241 petitions. Rule 4 of the section 2254 rules
permits summary dismissals.

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On April 13, 1992, Santiago discharged a firearm during the
attempted robbery of an armored care on a crowded street in
Brooklyn, New York. When one of the security guards
protecting the car shot back at Santiago and his coconspirators, Santiago was hit, collapsed to the ground, and
was quickly taken into custody by the police. Two innocent
bystanders were wounded in the crossfire.
Santiago pleaded guilty in January 1993 to conspiring to
obstruct commerce by robbery, in violation of 18 U.S.C. §
1951; attempting to obstruct commerce by robbery, in violation
of 18 U.S.C. § 1951; and using a firearm during the
commission of a crime of violence, in violation of 18 U.S.C. §
924(c)(1). At that time, § 924(c)(1) provided that:
Whoever, during and in relation to any crime of violence . .
. for which he may be prosecuted in a court of the United
States, uses or carries a firearm, shall, in addition to the
punishment provided for
such crime of violence . . . be
sentenced to imprisonment for five years, . . . and if the
firearm is a machine gun, . . . to imprisonment for thirty
years.
18 U.S.C. § 924(c)(1)(1994). With respect to Santiago’s plea
on the § 924(c)(1) charge, the parties agreed under the terms
of the plea agreement that the sentencing judge would
determine whether Santiago’s weapon was a machine gun and,
accordingly, whether his sentence for that crime would be for
five or 30 years.
After a hearing on September 30, 1993, at which both parties
presented witnesses, Judge Weinstein-presumably operating
under a preponderance-of-the-evidence standard, [citation
omitted] determined that “[t]he evidence is overwhelming that
at the time that this defendant was using the weapon, it was
fully automatic and it was being used in that way.” Santiago
was thus faced with a 30-year sentence for his firearms offense
and 97 to 121 months in prison on the two robbery counts. The
Court downwardly departed on the two robbery counts and
sentenced Santiago to a four-year prison term for those crimes,
sentencing petitioner to a total of 408 months (34 years) in
prison.
Santiago v. United States, 64 F. App’x 281, 283 (2nd Cir. 2003)(nonprecedential)(internal
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citation omitted)
Petitioner took a direct appeal of his conviction, which was affirmed by the
Second Circuit on March 30, 1994, after “rejecting as frivolous his claim that the evidence
was insufficient to show that his weapon was a machine gun” and denying his Eighth
Amendment claim as well. Id. The court held that Santiago’s claim that “he did not know
that the weapon was a machine gun” was not properly before the Court because it was not
raised in the district court. Id.
Santiago filed a motion pursuant to 28 U.S.C. § 2255. In that motion, he
argued: (1) the firearm he used was not a machine gun; (2) he did not use and carry the
same weapon; (3) he did not know the firearm was a machine gun; and (4) ineffective
assistance of counsel. See Doc. 1, 2241 petition, ECF p. 3; see also Santiago, 64 F.
App’x at 283. On September 5, 2000, the sentencing court “rejected each of petitioner’s
claims on the merits, and issued a certificate of appealability ‘on the questions of whether
the petitioner knew the gun was a machine gun, and the competence of counsel.’”
Santiago, 64 F. App’x 283-84. No appeal of the order denying the 2255 motion was filed.
Id.
On February 6, 2001, Petitioner filed a motion under Fed. R. Civ. P. 60(b),
seeking reconsideration of the district court’s September 5, 2000, order. The Rule 60(b)
motion argued that the sentence on the firearm count was improper on the bases of
Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), and
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because
there was no jury determination beyond a reasonable doubt that the firearm involved in the

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offense was a machine gun. See Santiago, 64 F. App’x at 284.2
In March 2002, the district court granted the motion for reconsideration,
reopened the § 2255 motion, but denied it. The court granted Santiago a certificate of
appealability on the issue of whether he knew the gun was a machine gun and on
competency of counsel, but did not grant a certificate of appealability on the
Apprendi/Castillo issue. Id. Santiago then filed an appeal to the Second Circuit on the two
claims certified by the District Court. He also sought a certificate of appealability on the
Apprendi/Castillo claim. Id.
The appellate court dismissed Santiago’s first two claims for lack of
jurisdiction because his Rule 60(b) motion, which did not include a challenge to either of
these claims, was untimely filed. Id. at 285. The court granted Santiago a certificate of
appealability on the Apprendi/Castillo claim but ultimately rejected that claim for lack of
jurisdiction because it was raised by the Rule 60(b) motion, which should have been
treated by the district court as a second or successive 2255 motion over which it had no
jurisdiction in the absence of permission of the Second Circuit to file it. Id. at 285-86.
Finally, the Court of appeals denied Santiago’s request to file a successive
habeas petition based on his Apprendi/Castillo claim, noting that the rule announced in
Apprendi has not been made retroactive to cases on collateral review by the Supreme

2

In Castillo, the Supreme Court resolved the issue of whether the enhancement
provisions of 18 U.S.C. § 924(c) (1998 ed.) were elements of the crime or merely sentencing
factors. The Supreme Court held that the enhancement provisions were elements of the
crime which must be proven to a jury. Castillo, 530 at 131, 120 S.Ct. at 2096. In Apprendi,
the Supreme Court held that “any fact (other than a prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt.” Apprendi, 530 U.S. 476, 120 S.Ct. at 2355.

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Court. Id. at 287.

III.

Discussion
“A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the means to

collaterally challenge a federal conviction or sentence,” Massey v. United States, 581 F.3d
172, 174 (3d Cir. 2009), and the motion must be presented to the sentencing court. See
28 U.S.C. § 2255(a) (providing that a defendant “may move the court which imposed the
sentence”).
A defendant may invoke section 2241, but only when he shows under
section 2255's “safety valve” provision, 28 U.S.C. § 2255(e), that the remedy under section
2255 would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C.
§ 2255(e). “A § 2255 motion is inadequate or ineffective only where the petitioner
demonstrates that some limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of his wrongful detention
claim.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). “Section
2255 is not inadequate or ineffective merely because the sentencing court does not grant
relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the
stringent gatekeeping requirements of the amended § 2255.” Id. at 539.3 Rather, the
3

Section 2255's “gatekeeping” provision, section 2255(h), prohibits a second or
successive 2255 motion unless the following requirements are met:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
or

(continued...)
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“safety valve” under section 2255 is extremely narrow and has been held to apply only in
unusual situations, such as those in which a prisoner has had no prior opportunity to
challenge his conviction for conduct later deemed to be non-criminal by an intervening
change in law. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)). If a defendant improperly challenges his
federal conviction or sentence under section 2241, the petition must be dismissed for lack
of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971); Hill v.
Williamson, 223 F. App'x 179, 180 (3d Cir. 2007) (per curiam) (nonprecedential).
Petitioner cannot use the safety valve. He does not claim that his conviction
is for conduct later deemed to be non-criminal by an intervening change in law. He does
not claim that the use of a machine gun during a crime of violence is no longer criminal;
instead he claims that the determination that he used a machine gun should have been
made by a jury, not the court, and under the reasonable-doubt standard. Section 2255 is
not inadequate or ineffective in these circumstances, and hence we cannot consider his
claims in a section 2241 petition. See Dorsainvil, 119 F.3d at 250; Okereke v. United
States, 307 F.3d 117 (3d Cir. 2002)(“Unlike the intervening change in law in In re
Dorsainvil that potentially made the crime for which that petitioner was convicted
non-criminal, Apprendi dealt with sentencing and did not render conspiracy to import
heroin, the crime for which Okereke was convicted, not criminal. Accordingly, under our In
re Dorsainvil decision, § 2255 was not inadequate or ineffective for Okereke to raise his

(...continued)
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.

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Apprendi argument”). Additionally, the fact that the Second Circuit denied Santiago
permission to file a second or successive § 2255 motion does not demonstrate § 2255 is
inadequate or ineffective. See Okereke, 307 F.3d at 120-21.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: June 12, 2013

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