Rodriguez et al v. Thomas et al

Filing 8

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Yvette Kane on 1/14/15. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH RODRIGUEZ, et al.,
Petitioners,
v.
WARDEN J.E. THOMAS, et al.,
Respondents

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CIVIL NO. 1:14-CV-1121
(Judge Kane)

MEMORANDUM
On November 11, 2013, Petitioners Joseph and Charles Rodriguez (collectively,
“Petitioners”), who are currently confined at the United States Penitentiary in Lewisburg,
Pennsylvania, filed this pro se petition for writ of habeas corpus. (Doc. No. 1.) Petitioners
challenge the life sentences imposed on them by the U.S. District Court for District of New
Jersey (“trial court”). (Id.) For the following reasons, the habeas petition will be dismissed for
lack of jurisdiction.

I.

Background
On July 9, 1999, a jury found Petitioners guilty of the following crimes:
1) conspiracy to defraud the United States (pursuant 18 U.S.C. § 2113(a), (d) and 18
U.S.C. 1951(a));
2) two counts of bank robbery by force or violence (pursuant to 18 U.S.C. § 2113(a),
(d));
3) three counts of use of a firearm during a violent crime (pursuant to 18 U.S.C. §
924(c)(1);
4) motor vehicle theft (pursuant to 18 U.S.C. § 2119(2));
5) interference with commerce by threat or violence (pursuant to 18 U.S.C. § 1951(a));
and
6) possession of a firearm by a convicted felon (pursuant to 18 U.S.C. § 922(g)(1), (2)).

United States v. Rodriguez, 2:98-cr-00547, Doc. No. 84 (D. N.J. 1999). On March 30, 2000, the

trial court sentenced Petitioners to 60 months of imprisonment for the charge of conspiracy; a
concurrent term of 175 months of imprisonment for the two counts of bank robbery; a concurrent
term of 175 months for the charge of motor vehicle theft; a concurrent term of 165 months for
the charge of interference with commerce; a concurrent term of 120 months for the charge of
possession of a firearm; and three consecutive terms of 60 months, 240 months, and life
imprisonment for the three counts of using a firearm during a violent crime. Id. at Doc. Nos.
122, 126. On April 7, 2000, Petitioners appealed their convictions and on January 21, 2003, the
U.S. Court of Appeals for the Third Circuit upheld the judgments below. Id. at Doc Nos. 127,
128, 142. On January 8, 2004, Joseph Rodriguez filed a motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 (“§ 2255 motion”). Rodriguez v. United States, 2:04-cv00085, Doc. No. 1 (D. N.J. 2004). The trial court denied his motion on December 1, 2004. Id. at
Doc. No. 11. Charles Rodriguez also filed a § 2255 motion on January 14, 2004, and it was
denied on August 22, 2005. Rodriguez v. United States, 2:04-cv-00158 (D. N.J. 2005).
On June 11, 2014, Petitioners sought to challenge their convictions and sentences for
using a firearm during a violent crime (“§ 924(c) convictions”) by filing the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) Petitioners argue that certain
elements of their § 924(c) offenses were not submitted to the jury for proof beyond a reasonable
doubt. (Doc. No. 2 at 15–16.) In almost all circumstances, such challenges to a federal
conviction or sentence can only be brought in a § 2255 motion, which must be filed with the trial
court. 28 U.S.C. § 2255. The only exception to this rule lies in cases where a § 2255 motion is
“inadequate or ineffective to test the legality” of a prisoner’s detention. 28 U.S.C. § 2255(e).
Thus, this court must determine whether the petition fits within this exception in order to

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exercise jurisdiction under 28 U.S.C. § 2241.

II.

Discussion
A.

Standard of Review

District courts are required to “promptly examine” each petition for writ of habeas corpus
before serving it on the respondent. Rule 4 of the Rules Governing Section 2254 Cases
(applicable to § 2241 petitions through Rule 1(b)). When examining the petition, it is the duty of
the court to dismiss the petition sua sponte if “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court.” Id.; see also
McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face.”). Summary
dismissal is appropriate “when the petition is frivolous, or obviously lacking in merit, or where .
. . the necessary facts can be determined from the petition itself without need for consideration of
a return.” Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970), cert. denied, 400 U.S. 906 (1970).
B.

The Savings Clause of 28 U.S.C. § 2255

In general, a § 2255 motion is the sole method available for federal prisoners to
collaterally challenge the legality of their convictions or sentences. 28 U.S.C. § 2255(e); see
also, e.g., Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing Davis v. United
States 417 U.S. 333, 342 (1974)). If a prisoner instead attempts to challenge the legality of his or
her conviction or sentence through a petition for writ of habeas corpus, that petition normally
must be dismissed. 28 U.S.C. § 2255(e). Petitioners admit that they are challenging the legality
of their convictions and sentences through a petition for writ of habeas corpus, but seek to

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invoke the “savings clause” of § 2255(e).1 (Doc. 13 at 1.) This clause allows federal prisoners
to file a petition for writ of habeas corpus under 28 U.S.C. § 2241 in situations where the remedy
provided by § 2255 is “inadequate or ineffective to test the legality” of their detention. 28
U.S.C. § 2255(e).
The U.S. Court of Appeals for the Third Circuit has held that this 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, 307 F.3d at 120 (citing Cradle v. United States, 290 F.3d 536, 538
(3d. Cir. 2002)). The Third Circuit has also emphasized that § 2255 should not be considered
“inadequate or ineffective” “merely because that petitioner is unable to meet [§ 2255's] stringent
gatekeeping requirements.” Id. The narrow scope of the savings clause is essentially limited to
the “unusual position” where an “intervening change in substantive law,” having retroactive
effect on cases on collateral review, renders the conduct for which the petitioner was convicted
non-criminal. In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1996); see also Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002).
Petitioners set forth two separate claims involving their § 924(c) convictions. This court
will examine each claim in turn to determine if either can be brought under § 2255's savings
clause.
C.

Alleyne Claims

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Petitioners state that they would not be able to satisfy the requirements for filing a second or successive motion
under 28 U.S.C. § 2255(h). (Doc. No. 2 at 13.)

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Petitioners assert that the trial court erroneously failed to instruct the jury2 to determine
beyond a reasonable doubt whether the firearms used during the robbery had the respective
properties of being a machine gun and having a silencer.3 (Doc. No. 2 at 15–16.) Petitioners
base these claims on the Supreme Court’s decision in Alleyne v. United States, 570 U.S. ___, 133
S. Ct. 2151 (2013). In Alleyne, the Court held that the existence of any fact that increases the
mandatory minimum range of a sentence must be proved to a jury beyond a reasonable doubt.
133 S. Ct. at 2163. Petitioners argue that, since the mandatory minimum range of their sentences
was increased based on the fact that they were carrying a machine gun and a gun with a silencer
(pursuant to 18 U.S.C. § 924(c)(1)(B)(ii)), the trial court erred by not requiring the state to prove
beyond a reasonable doubt that their firearms possessed those properties.
Regardless of whether Petitioners’ Alleyne claims have merit, the question before this
court is whether a § 2255 motion is “inadequate or ineffective” to test those claims, thus
allowing Petitioners to bring them in a habeas petition via § 2255's savings clause. Petitioners
observe that the Third Circuit has not explicitly addressed whether a sentencing error (rather
than an erroneous conviction) can ever warrant the application of § 2255's savings clause. (Doc.
No. 2 at 13.) While that is true, see Pollard v. Yost, 406 Fed. App’x 635, 637–638 (3d Cir.
2011), it is beside the point in this case, as the Third Circuit has made it clear that Alleyne
claims—if not all sentencing error claims—do not qualify for § 2255's savings clause.
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Petitioners aver that the jury was asked to determine this issue by way of special interrogatory, but that they were
not instructed to make this determination beyond a reasonable doubt. (Doc. No. 2 at 15.)

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Petitioners also claim that the jury should have decided whether Petitioners were aware that their firearms
contained these properties, yet they cite to no authority to support the premise that § 924(c) contains this sort of mens
rea requirement and it appears that the Third Circuit has never ruled on this issue. See United States v. Ross, 10-cv4309, 2013 WL 5873375, at *6–7 (E.D. Pa. 2013). Even if petitioners’ interpretation of the statute were correct,
they would nonetheless be unable to bring these claims under § 2255's savings clause for the reasons discussed
below.

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In Okereke v. United States, the Third Circuit held that § 2255 was not an inadequate
vehicle for claims arising from Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the
Supreme Court held that facts that increase the maximum mandatory sentencing range must be
proved before a jury beyond a reasonable doubt. 307 F.3d 117 (3d Cir. 2002). Following
Okereke, the Third Circuit has repeatedly held that § 2255 is also an adequate vehicle for claims
brought under Alleyne because Alleyne is simply a logical extension of Apprendi. See, e.g.,
Sacksith v. Warden Canaan USP, 552 F. App’x 108, 109 (3d Cir. 2014) (“We have held that ‘§
2255 [i]s not inadequate or ineffective for [a prisoner] to raise his Apprendi argument,’ . . . and
there is no basis to treat claims brought under Alleyne differently.”) (quoting Okereke, 307 F.3d
at 121); Jackman v. Shartle, 535 Fed. App’x 87, 89 (“Because we have held that Apprendi
claims must be brought pursuant to § 2255, not § 2241 . . . it follows that Alleyne claims must be
brought pursuant to § 2255 as well.”). While the Third Circuit has thus far only ruled on this
issue in non-precedential opinions, those opinions conclusively illustrate that the logic of
Okereke must extend to cover Alleyne claims.
Petitioners argue that the Supreme Court’s recent decision in Persaud v. United States,
134 S. Ct. 1023 (2014), provides grounds for revisiting this issue. (Doc. No. 2 at 14–15). In
Persaud, a prisoner sought to collaterally challenge his sentence, claiming that the sentencing
court’s determination of his prior criminal history was incorrect under new circuit precedent, and
that this erroneously led to a higher mandatory minimum sentence. See Brief for United States at
7–8, Persaud v. United States, 134 S. Ct. 1023 (2014) (No. 13-6453). Since Persaud was unable
to satisfy § 2255's gatekeeping provisions, he sought to invoke the savings clause in order to
challenge his sentence through a petition for writ of habeas corpus. Id. The U.S. Court of

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Appeals for the Fourth Circuit held that Persaud’s claim did not fall within the savings clause
because it only related to the legality of his sentence and not his conviction. Id. at 9–10.
On appeal to the Supreme Court, the United States took the position that the lower courts
erred in holding that the savings clause is never available for sentencing-related claims. Id. at
15–16. The United States requested that the Court issue a “GVR” order (i.e., an order granting
certiorari, vacating the judgment below, and remanding for further proceedings) and the Court
issued such an order. Id. at 10–11; Persaud, 134 S. Ct. at 1023. Petitioners speculate that this
indicates the Court favors a broader interpretation of the savings clause, one which would extend
to allow Alleyne claims through the savings clause. (Doc. No. 2 at 9). While Petitioners may be
correct, it does not change the fact that a GVR order has no precedential value.4 This court is
thus bound to follow the logic of Okereke, which does not allow Petitioners to utilize the savings
clause to advance their Alleyne claims through a petition for writ of habeas corpus.
D.

Rosemond Claims

Petitioners also appear to advance the claim that their convictions should be overturned
because of Rosemond v. United States, ___ U.S. ___, 134 S. Ct. 1240 (2014). (Doc. No. 2 at
14–15.) In Rosemond, the Court held that in order to convict someone of a § 924(c) offense
under an aiding and abetting theory, the government must prove “the defendant actively
participated in the underlying drug trafficking or violent crime with advance knowledge that a
confederate would use or carry a gun during the crime's commission.” Id. at 1243. Petitioners

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This court also notes that it is not unusual for the Supreme Court to issue a GVR order when both parties are in
agreement that the lower court erred on an important issue, regardless of whether the Court agrees that the lower
court ruling was in error. See Stutson v. United States, 516 U.S. 163, 183 (1996) (Scalia, J., dissenting) (“Our recent
practice, however, has been to remand in light of the confession of error without determining the merits, leaving it to
the lower court to decide if the confession is correct.”)

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assert that this means the jury should have been instructed that “the government was required to
prove active facilitation or encouragement in order to establish aiding and abetting liability” in
their case. (Doc. No. 2 at 15.)
There is no controlling authority directly addressing whether a Rosemond claim can be
brought in a habeas petition via § 2255's savings clause, but it is nonetheless clear that the
savings clause is unavailable for this claim. Supreme Court holdings made after a conviction has
become final may not be used as the basis for a collateral challenge to that conviction unless the
rule has retroactive effect. See, e.g., Schriro v. Summerlin, 542 U.S. 348 (2004). Nowhere in
Rosemond did the Court indicate that it intended its holding should be applied retroactively, and
the rule set forth in Rosemond does not appear to meet the qualifications for retroactive
application initially set forth in Teague v. Lane, 489 U.S. 288 (1989).
In order to have retroactive application, a Supreme Court holding must set forth a “new
rule” that is either “substantive” or is a “‘watershed rule of criminal procedure’ implicating the
fundamental fairness and accuracy of the criminal proceeding.” Schriro v. Summerlin, 542 at
351–52 (2004). The holding in a given case qualifies as a “new rule” if it “breaks new ground or
imposes a new obligation on the States or the Federal Government” and if “the result was not
dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489
U.S. at 301. Rosemond does not appear to satisfy the requirement of constituting a “new rule,”
as the Court gave no indication that its holding broke “new ground,” and explained at length that
its holding was in fact dictated by existing precedent. See Rosemond, 134 S. Ct. at 1248–49.
This court also notes that other district courts faced with similar challenges appear to have
universally concluded that Rosemond does not apply retroactively. See, e.g., Martinez v. United

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States, 3:14-CV-1359, 2014 WL 3361748, *2 (N.D. Tex. 2014); Rodriguez-Pena v. Werlich, 14cv-994, 2014 WL 4273631, *2 (W.D. La. 2014); Taniguchi v. Butler, 14-CV-120, 2014 WL
5063748 (E.D. Ky. 2014).
Since the rule articulated in Rosemond does not apply retroactively to cases on collateral
review, § 2255's savings clause is unavailable for Petitioners’ Rosemond claims.5

III.

Conclusion
As Petitioners claims do not fit into the narrow scope of § 2255's savings clause, this

court lacks jurisdiction to review their petition for writ of habeas corpus. Because Petitioners
have conceded that they cannot meet § 2255's procedural requirements (Doc. No. 2 at 13), this
court will refrain from transferring the case to the sentencing court to be heard as a motion to
vacate, set aside or correct sentence under § 2255, and will instead dismiss the petition for lack
of jurisdiction.
An appropriate order will issue.

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This court further notes that the facts of each robbery demonstrate conclusively that Petitioners must have had the
requisite intent to be convicted of their § 924(c) offenses under an aiding and abetting theory. See Rodriguez v.
United States, 2:04-cv-00085, Doc. No. 10 at 2–5 (D. N.J. 2004) (reciting the facts of Petitioners’ convictions).
Both bank robberies were videotaped and showed assault rifles being brandished by at least some of the participants
upon entering the building. Id. at 2–3. As for the robbery of the armored car, Petitioners visited an FBI informant’s
apartment prior to the robbery, “where they had stored guns, ammunition and other items in preparation for the
robbery.” Id. Given these facts, this court finds that Petitioners must have had prior knowledge of the
characteristics of these firearms and that they would be used in the robberies. “When an accomplice knows
beforehand of a confederate’s design to carry a gun” and decides “to go ahead with his role in the venture,” he has
shown the requisite intent to aid in the armed defense. Rosemond, 134 S. Ct. at 1249.

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