Rinaldi v. Zickfoose
Filing
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MEMORANDUM re Petition for Writ of Habeas Corpus 1 and Mtn for Bail Pending Habeas Relief 9 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 04/20/15. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL RINALDI,
Petitioner
v.
WARDEN ZICKEFOOSE,
Respondent
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CIVIL NO. 1:13-CV-1976
(Judge Rambo)
MEMORANDUM
Petitioner Michael Rinaldi (“Rinaldi”), an inmate presently confined at the
Federal Correctional Complex at Allenwood (“FCC-Allenwood”) in White Deer,
Pennsylvania, commenced this action on July 22, 2013, by filing a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) In the petition, Rinaldi
challenges his 1999 convictions and sentence in the United States District Court for
the Middle District of Pennsylvania. For the reasons set forth below, the instant
petition will be denied.
I.
Background
On June 18, 1999, Rinaldi was convicted of conspiracy to distribute narcotics,
use of a firearm in relation to drug trafficking, and possession of a firearm after
having been convicted of a felony. (Doc. 5 at pp. 1-2.) On November 3, 1999, the
Honorable Edwin M. Kosik of the Middle District Court sentenced him to
concurrent terms of incarceration of 188 months on each of the drug charges and a
concurrent term of incarceration of 120 months on the firearm possession charges, to
be followed by a 60-month consecutive term of incarceration on the use of firearm in
relation to drug trafficking charge. (Id. at p. 2.) The United States Court of Appeals
for the Third Circuit upheld Rinaldi’s convictions and sentence, and the United
States Supreme Court denied his petition for writ of certiorari. (Id.)
On May 11, 2001, Rinaldi filed a motion to vacate, set aside or correct his
sentence under 28 U.S.C. § 2255. (Id. at 3-4.) In his petition, Rinaldi raised
grounds of insufficient evidence and ineffective assistance of counsel. (Id.) His
petition was denied. (Id. at 4.) A subsequent motion to reconsider was also denied
by the court. (Id.) In addition, the Third Circuit denied his certificate of
appealability. (Id. at 5.) Following this denial, Rinaldi filed with the district court a
motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).
(Id.) The district court denied the motion, and the Third Circuit denied his
subsequent certificate of appealability. (Id. at 6-7.)
On June 15, 2004, Rinaldi filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241 that was denied by this court without prejudice to any right
Rinaldi may have had to move the appropriate court of appeals for an order
authorizing the district court to consider a successive § 2255 motion pursuant to 28
U.S.C. § 2244(b). See Rinaldi v. Nash, Civ. No. 1:CV-04-1287 (M.D. Pa. Jan. 13,
2005). In that petition, Rinaldi asserted challenges to the sufficiency of evidence at
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trial, the jury instructions, and his sentencing. See id. Following the denial of the
petition, on February 14, 2005, Rinaldi sought an order from the Third Circuit Court
authorizing the district court to consider a second or successive § 2255 petition
pursuant to 28 U.S.C. § 2244(b)(3)(A). (See Doc. 5 at p. 6 n.2.) The Third Circuit
Court denied the application.1 In re. Rinaldi, Civ. No. 05-1457 (3d Cir. June 23,
2005).
On April 10, 2008, Rinaldi filed an additional petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, wherein he claimed that he is “actually
innocent” of the charge of conspiracy to distribute narcotics upon which he was
convicted, but did not provide any explanation for his failure to raise this claim in
his previous § 2255 petition. Rinaldi v. Sniezek, Civ. No. 1:CV-08-0679 (M.D. Pa.).
The court dismissed the petition without prejudice to any right Rinaldi may have had
to move the appropriate court of appeals for an order authorizing the district court to
consider a second or successive § 2255 motion pursuant to 28 U.S.C. § 2255(b).
(See id.) The court also denied a later motion for reconsideration. (See id.)
Rinaldi thereafter appealed this court’s dismissal of the petition to the Third
Circuit. See Rinaldi v. Sniezek, 302 F. App’x 125 (3d Cir. 2008). In a per curiam
opinion affirming this court’s decision, the Third Circuit held as follows:
Rinaldi also sought leave to file a second or successive § 2255 petition in the Third Circuit Court
on January 18, 2006, In re. Rinaldi, Civ. No. 06-1201 (3d Cir.), and February 26, 2007, In re.
Rinaldi, Civ. No. 07-1499 (3d Cir.). Those applications were denied on March 29, 2006 and April
10, 2007, respectively. (Id.)
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We agree with the District Court that Rinaldi has not demonstrated such
a limitation in § 2255’s scope or procedure here. While he claims that
he has presented newly discovered evidence that demonstrates his
innocence, this evidence solely consists of trial transcripts and witness
affidavits. Of course, the testimony was available at trial. In addition,
Rinaldi does not argue, and there is no indication, that the information
in the affidavits was unavailable at trial. Finally, the District Court
properly denied Rinaldi’s motion for reconsideration because he did not
identify an intervening change in the law that prevented him from
raising an actual innocence claim in his first § 2255 motion.
Id. at 127.
On January 19, 2010, Rinaldi filed another petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Rinaldi v. Rios, Civ. No. 1:10-CV-00281 (M.D. Pa.).
In that petition, Rinaldi restated the claims previously asserted in his 2008 § 2241
petition, including one of actual innocence, but added further claims relating to the
firearms and conspiracy convictions. On May 20, 2010, this court dismissed the
petition and later denied a motion for reconsideration. (See id.)
On March 14, 2013, Rinaldi filed another petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Rinaldi v. Zickefoose, Civ. No. 1:13-CV-00530 (M.D.
Pa.) Rinaldi again raised a claim of “actual innocence,” asserting as follows:
My crime did not have an affect [sic] on interstate commerce and
should have been tried at the state level. My indictment does not allege
an affect on commerce. In order to commit a federal offense an affect
on commerce must be alleged and proven. Without an affect on
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commerce there is no offense committed and my conduct is not
criminal.
(Id., Doc. 6 at 7.) He further contended that “21 U.S.C. 841 and 846 do not require
the government to allege or prove an affect on interstate commerce,” and that “his
purely local conduct was beyond the power of Congress to punish.” (Id. at p. 8.) As
a result, he claimed that his “purely local conduct is not a crime and exceeds
Congress’ power under the Tenth Amendment.” (Id.) As to his delay in raising this
claim, Rinaldi argued that he could not raise it via 28 U.S.C. § 2255 because the
claim did not become available until 2011 when the United States Supreme Court
decided Bond v. United States, ___ U.S. ___, 131 S. Ct. 2355 (June 16, 2011).2 As
relief, Rinaldi requested that his conviction be vacated and that he be released from
custody. (Rinaldi, Civ. No. 1:13-CV-00530, Doc. 6 at 9.) On May 23, 2013, this
court dismissed the petition. (See id., Doc. 13.) Rinaldi appealed to the Third
Circuit Court, which denied the appeal on July 25, 2013. See Rinaldi v. Zickefoose,
Civ. No. 13-2545 (3d Cir. July 25, 2013).
In Bond, the Supreme Court reversed a decision of the Third Circuit, wherein the Third Circuit held
that only the state itself could argue that a federal statute violated the Tenth Amendment. In its
decision, the Supreme Court held instead that individuals have standing to challenge federal statutes
on Tenth Amendment grounds when they are directly affected by the statute. Bond, 131 S. Ct. at
2363-64 (“The individual, in a proper case, can assert injury from governmental action taken in
excess of the authority that federalism defines. Her rights in this regard do not belong to a State.”).
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On July 12, 2013, Rinaldi filed a motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b) in his 1998 criminal matter before Judge
Kosik. See United States v. Powell, Crim. No. 3:98-CR-00294 (M.D. Pa. 1998). In
this motion, Rinaldi sought to have his original habeas corpus proceeding, filed
pursuant to 28 U.S.C. § 2255 in May 2001, reopened so that he could attempt to take
advantage of a newly decided United States Supreme Court decision, Alleyne v.
United States, ___ U.S. ___, 133 S. Ct. 2151 (Jun. 17, 2013).3 On February 25,
2014, Judge Kosik denied the motion. See Powell, Crim. No. 3:98-CR-00294 at
Doc. 689.
Rinaldi filed the instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 on July 22, 2013. (Doc. 1.) In the petition, Rinaldi seeks to have this
court vacate his conviction for use of a firearm in relation to drug trafficking based
on a ruling by the United States Supreme Court in United States v. Watson, 552 U.S.
74 (2007). In Watson, the Supreme Court held that a person does not “use” a
firearm under 18 U.S.C. § 924(c)(1)(A) when he receives a gun in trade for drugs.
In Alleyne, the Supreme Court held that the constitutional rule announced in Apprendi v. New
Jersey, 530 U.S. 466 (2000), applies to facts that increase the mandatory minimum punishment for a
crime, and that under Apprendi, any fact (other than the fact of a prior conviction) that increases a
mandatory minimum sentence “is an ‘element’ that must be submitted to the jury and found beyond
a reasonable doubt.” Alleyne, 133 S. Ct. at 2155. In doing so, the Court overruled Harris v. United
States, 536 U.S. 545 (2002), in which it had held that Apprendi did not preclude the use of facts
found by a judge at sentencing to increase a defendant’s mandatory minimum sentence.
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Id., 552 U.S. at 83. Here, Rinaldi claims that, at his trial, “the government advanced
the theory that [he] was guilty of using a firearm in relation to drug trafficking
because he bartered cocaine in exchange for a gun.” (Doc. 1 at 3.) He argues that,
under Watson, that conduct for which he was convicted is no longer criminal and
does not constitute an offense. (Id.)
On July 30, 2013, the court issued an order directing the Respondent to show
cause why Rinaldi should not be granted habeas relief. (Doc. 4.) Respondent
responded to the petition on August 19, 2013, (Doc. 5), and Rinaldi filed a traverse
on August 28, 2013 (Doc. 6). Thus, this habeas petition is ripe for disposition.
II.
Discussion
Respondent sets forth three arguments for dismissal of the instant petition: 1)
that this court lacks jurisdiction over the petition pursuant to 28 U.S.C. § 2255; 2)
that the petition should be dismissed as a successive petition; and 3) that Rinaldi’s
conviction for use of a gun during a drug transaction was factually supported on
grounds that are not called into question by Watson. (Doc. 5 at pp. 11–21.) This
court will examine the question of jurisdiction before turning to the other arguments.
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A.
The “Savings Clause” of 28 U.S.C. § 2255(e)
“[T]he usual avenue for federal prisoners seeking to challenge the legality of
their confinement” is a motion to vacate, set aside or correct a sentence under 28
U.S.C. § 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); see also United
States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999) (stating that § 2255 provides
federal prisoners a means by which to bring collateral attacks challenging the
validity of their judgment and sentence); Snead v. Warden, F.C.I. Allenwood, 110 F.
Supp. 2d 350, 352 (M.D. Pa. 2000) (stating that challenges to a federal sentence
should be brought in a § 2255 motion). However, § 2255 contains a “savings
clause,” which allows a prisoner to challenge his federal conviction through a
petition for writ of habeas corpus if he can show that § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); United States
v. Brooks, 230 F.3d 643, 647 (3d Cir. 2000) (recognizing availability of § 2241 in
cases where petitioners have no other means of having claims heard). If a petition
challenging a federal conviction or sentence does not fit within this savings clause, it
must normally be dismissed for lack of jurisdiction. Application of Galante, 437
F.2d 1164, 1165 (3d Cir. 1971).
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The U.S. Court of Appeals for the Third Circuit has held that the savings
clause applies only in “rare situation[s]” where “the petitioner can show that a
limitation of scope or procedure would prevent a § 2255 proceeding from affording
him a full hearing and adjudication of his wrongful detention claim.” Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing Cradle v. United States, 290
F.3d 536, 538 (3d Cir. 2002)). “It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.” Cradle, 290 F.3d at 538-39 (citing Garris
v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)). Hence, “[§] 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.” Cradle, 290 F.3d at 539. In this
circuit, the savings clause is only applicable where a prisoner is unable to proceed
under § 2255 and is “being detained for conduct that has subsequently been rendered
noncriminal by an intervening Supreme Court decision” that was unavailable to the
prisoner at the time of his initial § 2255 motion. See in re Dorsainvil, 119 F.3d 245,
251–252 (3d Cir. 1996).
Rinaldi presents such a claim in the instant petition. He could not have
presented his Watson claim when he filed his § 2255 motion in 2001 following his
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1999 conviction, as Watson was not decided until 2007. Because the claim raised in
the petition is not based on a new rule of constitutional law made retroactive to cases
on collateral review, it would not satisfy the requirements for raising a second or
successive motion under § 2255, thereby making that section an inadequate vehicle
for his claim. See id. at 247-48. Therefore, this court has jurisdiction over Rinaldi’s
petition pursuant to § 2255's savings clause. See id. at 252.
B.
Whether Rinaldi’s Petition is Barred as a Second Petition
Having established this court’s jurisdiction to consider the instant petition,
there remains the issue of whether it is procedurally barred as a second petition
under 28 U.S.C. § 2244(a). Section 2244(a) provides that:
No circuit or district judge shall be required to entertain an application
for a writ of habeas corpus to inquire into the detention of a person
pursuant to a judgment of a court of the United States if it appears that
the legality of such detention has been determined by a judge or court
of the United States on a prior application for a writ of habeas corpus,
except as provided in section 2255.
28 U.S.C. § 2244(a). Unlike the other provisions of § 2244, § 2244(a) “applies to
any application for a writ of habeas corpus filed by a person who is in detention
pursuant to a judgment of a court of the United States.” Queen v. Miner, 530 F.3d
253, 255 (3d Cir. 2008).
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Under this section, which is essentially a codification of the “abuse-of-thewrit doctrine,” “a petitioner may not raise new claims that could have been resolved
in a previous action.” Queen, 530 F.3d at 255 (citing McClesky v. Zant, 499 U.S.
467, 483–86 (1991); see also, e.g., Holland v. Holt, 461 F. App’x 198 (3d Cir. 2012)
(affirming dismissal pursuant to § 2244(a) of a habeas petition setting forth a Watson
claim). In the intervening time between the Supreme Court’s decision in Watson
and the filing of the instant petition for writ of habeas corpus, Rinaldi filed three
other petitions for writ of habeas corpus in which he could have raised his Watson
claim. See Rinaldi v. Sniezek, Civ. No. 1:08-CV-0679 (M.D. Pa. April 10, 2008);
Rinaldi v. Rios, Civ. No. 1:10-CV-00281 (M.D. Pa. Jan. 19, 2010); Rinaldi v.
Zickefoose, Civ. No. 1:13-CV-00530 (M.D. Pa. Mar. 14, 2013). However, because
each of these previous petitions was dismissed for lack of jurisdiction, they are not
counted for purposes of determining whether the instant petition is a “second or
successive” petition. See Dellenbach v. Hanks, 76 F.3d 820 (7th Cir. 1996) (finding
that there was no abuse of the writ where prior petition was dismissed for lack of
subject-matter jurisdiction). Therefore, the instant petition is not barred under 28
U.S.C. § 2244(a) and this court may consider it on the merits. As this petition is
proceeding under a section not covered by AEDPA’s deferential standard of review,
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this court reviews questions of law and mixed questions of law and fact de novo, and
applies a presumption of correctness to questions of fact. See, e.g., Miller v. Fenton,
474 U.S. 104, 112 (1985).
C.
Whether Rinaldi’s Conviction is Valid Under Watson
Rinaldi was convicted under a statute making it criminal to “use[] or carr[y]” a
firearm “during and in relation to any . . . drug trafficking crime.” 18 U.S.C. §
924(c)(1)(A) (1996). In Watson, the Supreme Court held that a person does not
“use” a firearm under this provision when he receives a gun in trade for drugs. 552
U.S. at 83. Rinaldi claims that the prosecution’s theory for convicting him under §
924(c)(1)(A) was that he had received guns in exchange for cocaine, the type of
“receipt-in-trade” theory the Supreme Court rejected in Watson. (Doc. 1 at 3.)
Respondents contend that Rinaldi was not convicted under this theory, but was
instead alleged to have “used and carried” a firearm “for a substantial period of
time” while engaging in selling cocaine. (Doc. 5 at p. 19.)
As proof that he was convicted under the receipt-in-trade theory, Rinaldi
points to the opening argument of the trial, in which the prosecution stated:
[Y]ou’re also going to hear evidence of people that were involved or
one person that was involved in buying firearms for Michael Rinaldi . . .
. in return for cocaine.
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And you’re going to hear, I believe, when the Judge charges you that
that very act of trading cocaine for firearms is a violation of this charge
that I read to you earlier, using and carrying a firearm in relation to drug
trafficking.
(Doc. 13 at p. 2.)
During the closing arguments, however, the prosecution made only the
following statements regarding the 924(c) charge against Rinaldi:
All we have to show is that he possessed either—either one of those
two nine millimeters, either the Taurus that Leo Davis said that he had
there on the table when he was selling cocaine to him and bagging it up
or the Ruger, which everyone is—his own girlfriend testified that he
always carried.
(Doc. 5-1 at 30.) Similarly, Rinaldi’s trial counsel attempted to refute the
government’s theory by stating:
With regard to the gun charges, nobody testified that my client had a
reputation for violence. In fact, all of them stated that he didn’t have a
reputation for violence and that none of that—that he had never been
violent with any of those people.
In fact, also, Sergeant Coffay’s testimony that Mr. Rinaldi informed
him that he bought the bullet-proof vest because Mr. Rinaldi was afraid
of guns.
Further, nobody ever testified that my client possessed a firearm while
he was dealing drugs. Mr. Leo Davis said that there was a gun on the
table while Mr. Rinaldi was packing up cocaine. That doesn’t mean he
that [sic] possessed it. It could have been anybody else’s gun that was
in that room. Reasonable doubt certainly exists with regard to the
existence of any type of conspiracy with regard to Mr. Rinaldi, and also
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that Mr. Rinaldi was in possession of any type of firearm, firearms
while he was dealing cocaine.
(Id. at 55.) As is evident from these arguments, Rinaldi misrepresents the theory and
evidence upon which he was convicted on the gun charge at issue.
Moreover, the trial court’s jury charge did not hinge on the proposition of
Rinaldi trading cocaine for firearms, and a reading of the charge would not have
permitted a conviction on that ground. In its charge, the court stated, in relevant
part, as follows:
To use a firearm during a crime and in relation to a crime means to
actively employ the firearm during and in relation to the commission of
the crime. Use of a firearm includes firing, attempting to fire, striking
with brandishing, displaying or bartering the firearm during and in
relation to the commission of the drug trafficking crime.
(Doc. 5-1 at p. 112.) While the court stated that use of a firearm could encompass
bartering, the instruction indicated that Rinaldi would have to barter the firearm in
exchange for drugs, a theory which has been accepted by the Supreme Court. See
Smith v. United States, 508 U.S. 223, 241 (1993) (“We therefore hold that a criminal
who trades his firearm for drugs ‘uses’ it during and in relation to a drug trafficking
offense within the meaning of § 924(c)(1).”) Therefore, the court’s instructions did
not run afoul of Watson.
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Furthermore, the court instructed the jury that they could convict Rinaldi on
this count if they found that he either “used” or “carried” the firearm. (Doc. 5-1 at p.
112.) As such, Rinaldi could have been convicted under § 924(c) for “displaying” a
firearm, the use of a “silent but obvious and forceful presence of a firearm on the
table” during the crime, or simply having a firearm within his immediate control
during the crime. (Id. at pp. 112-13.) While the prosecution may have elicited
testimony that Rinaldi traded cocaine for firearms—something that Watson held did
not constitute a violation of the statute in question—there was also evidence that
Rinaldi often carried a firearm on his person and that he displayed a firearm
prominently on the table while selling cocaine. (Id. at 30.) Not only was this
evidence submitted at trial, but, as discussed above, this was the evidence that
counsel addressed in their closing arguments. Indeed, the only evidence suggesting
that Rinaldi was convicted on the receipt-in-trade theory is the prosecution’s
opening statement. Because a similar statement was not repeated in the closing
argument and because the court did not instruction the jury on the receipt-in-trade
theory, the prosecution’s opening statement is insufficient to establish that Rinaldi
was convicted for conduct that is not criminal. Accordingly, there is no evidence
that Rinaldi was convicted on a theory which was later rendered non-criminal.
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III.
Conclusion
Because there was sufficient evidence to convict Rinaldi under theories that
do not conflict with Watson, the jury instructions were given in a manner that does
not conflict with Watson, and the the evidence indicates that the prosecution
primarily pursued theories for conviction that remain lawful, this court finds that
Rinaldi was not convicted for conduct that has been rendered non-criminal. As that
is the sole claim raised in the instant petition, this court will deny the petition for
writ of habeas corpus.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: April 20, 2015.
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