Massaro v. Ebbert

Filing 4

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 5/25/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH MASSARO,

:
CIVIL NO. 3:17-cv-0180
:
Petitioner
:
:
(Judge Munley)
v.
:
:
WARDEN DAVID J. EBBERT,
:
:
Respondent :
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Presently before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 (Doc. 1) filed by Petitioner Joseph Massaro (“Massaro”), a federal inmate
incarcerated at the United States Penitentiary at Lewisburg, Pennsylvania. Preliminary
review of the petition has been undertaken, see R. GOVERNING § 2254 CASES R.4,1 and, for the
reasons set forth below, the petition will be dismissed for lack of jurisdiction.
I.

Background
“On October 27, 1993, Massaro was convicted by a jury of ten counts, related to his

involvement in the Luchese organized crime family, including murder and violations of the
Racketeer Influenced and Corrupt Organizations Act (“RICO”). He was sentenced to life
imprisonment. The Second Circuit affirmed his conviction in an unpublished opinion on
May 18, 1995. Massaro then filed a motion for a new trial and a petition for relief under 28

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Rule 4 provides “[i]f it plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.” See R. GOVERNING § 2254 CASES R.4. These rules are applicable to petitions under 28 U.S.C. §
2241 in the discretion of the court. Id. at R.1(b).

U.S.C. § 2255. After the denial of his petition was appealed to the Supreme Court and
reversed[,] Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714
(2003)[, the district court ] again denied his petition on October 5, 2004, Massaro v. United
States, No. 97 Civ. 2971 (MGC), 2004 WL 2251679 (S.D.N.Y. Oct. 5, 2004). The denial
was affirmed by the Second Circuit. Massaro v. United States, 152 F. App’x 20 (2d Cir.
2005).” Massaro v. United States, No. 97 Civ. 2971 (MGC), 2013 WL 655077 (S.D.N.Y.
Feb. 22, 2013). Most recently, Massaro sought leave to file a successive § 2255 petition with
the United States Court of Appeals for the Second Circuit. On October 17, 2016, the Second
Circuit disposed of the proposed § 2255 motion in the following manner:
As a preliminary matter, the proposed § 2255 motion would be successive because
Petitioner’s first § 2255 motion challenged the same criminal judgment and was
denied on the merits. See Vu v. United States, 648 F.3d 111, 113 (2d Cir. 2011).
We reject Petitioner’s argument that his claims were unripe until the issuance of
the supreme court decisions discussed in his present motion; claims based on new
Supreme Court decisions are clearly covered by the successive § 2255 provisions
of 28 U.S.C. § 2255(h). Upon due consideration, it is hereby ORDERED that
Petitioner’s motion is DENIED because he has not satisfied the criteria set forth
in §2255(h).
Petitioner does not rely on any newly discovered evidence within the meaning of
§ 2255(h)(1). Furthermore, Alleyne v. United States, 133 S.Ct. 2151 (2013), did
“not announce a new rule of Constitutional law that has been made retroactive by
the Supreme Court.” United States v. Redd, 735 F.3d 88, 89 (2d Cir. 2013). The
holding in Redd remains binding as it has not been overturned by any subsequent
decision of this Court or the Supreme Court. Regarding Petitioner’s ex post facto
argument, he does not identify any rule of law made retroactive by the Supreme
Court, and no such rule of law appears to exist. Finally, even if Petitioner’s ex
post facto argument arises under Peugh v. United States, 133 S.Ct. 2072 (2013),
the rule announced in Peugh also “does not constitute a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court.”
Herrera-Gomez v. United States, 755 F.3d 142, 148 (2d Cir. 2014) (internal
quotation marks omitted).
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(Doc. 1, pp. 93-94).
Massaro now seeks relief via 28 U.S.C. § 2241, on the basis of “intervening change in
the law.” (Doc. 1, p. 8). In addition, he challenges the Federal Bureau of Prison’s decision
to deny his request for early release pursuant to 18 U.S.C. § 3582(c)(1)(A)(ii). (Doc. 1, pp.
18-21).
II.

Discussion
Massaro’s first § 2255 motion was denied, on the merits, by the sentencing court.

Recently, he sought leave to file a successive § 2255, and the Second Circuit Court of Appeal
denied his motion for the reasons set forth in the background section, supra. Having met with
no success through § 2255, Massaro now attempts to utilize § 2241 to challenge the legality
of his conviction and sentence. (Doc. 1, p. 8).
Challenges to the legality of federal convictions or sentences that are allegedly in
violation of the Constitution may generally be brought only in the district of sentencing
pursuant to 28 U.S.C. § 2255. Okereke v. United States, 307 F.3d 117 (3d Cir. 2002) (citing
Davis v. United States 417 U.S. 333, 342 (1974)); see In re Dorsainvil, 119 F.3d 245 (3d Cir.
1997). A petitioner may only resort to a § 2241 petition in the unusual situation where the
remedy by motion under § 2255 would be inadequate or ineffective. See 28 U.S.C. § 2255;
see Dorsainvil, 119 F.3d at 251-52. Importantly, §2255 is not “inadequate or ineffective”
merely because the sentencing court has previously denied relief. See id. at 251. Nor do
legislative limitations, such as statutes of limitation or gatekeeping provisions, as is the case
here, placed on § 2255 proceedings render the remedy inadequate or ineffective so as to
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authorize pursuit of a habeas corpus petition in this court. Cradle v. United States, 290 F.3d
536, 539 (3d Cir. 2002); United States v. Brooks, 230 F.3d 643, 647 (3d Cir. 2000);
Dorsainvil, 119 F.3d at 251.). Rather, only when a federal prisoner is in an unusual position
of having no earlier opportunity to challenge his conviction or where he “is being detained
for conduct that has subsequently been rendered noncriminal by an intervening Supreme
Court decision” can he avail himself of § 2241. Dorsainvil, 119 F.3d at 251–52.
Massaro cannot demonstrate that a § 2255 motion is “inadequate or ineffective”—and
that resort to § 2241 is therefore available—simply because he has been denied relief by the
sentencing court and through subsequent appeals and motions. See Cradle, 290 F.3d at 539.
The remedy afforded under § 2241 is not an additional, alternative, or supplemental remedy
to that prescribed under § 2255 and Massaro fails to demonstrate that he falls within the
Dorsainvil exception. If a petitioner improperly challenges a federal conviction or sentence
under § 2241, as is the case here, the petition must be dismissed for lack of jurisdiction.
Application of Galante, 437 F.2d 1154, 1165 (3d Cir. 1971).
Further, this Court is without authority to review the denial of his request for
compassionate release/relief under § 3582(c)(1)(A)(I). Section 3582(c)(1)(A)(i) provides:
The court may not modify a term of imprisonment once it has been imposed
except that (1) in any case- (A) the court, upon motion of the Director of the
Bureau of Prisons, may reduce the term of imprisonment (and may impose a term
of probation or supervised release with or without conditions that does not exceed
the unserved portion of the original term of imprisonment), after considering the
factors set forth in section 3553(a) to the extent that they are applicable, if it finds
that (i) extraordinary and compelling reasons warrant such a reduction.
18 U.S.C. § 3582(c)(1)(A)(I). In the absence of a motion filed by the Director of the Federal
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Bureau of Prisons, a district court has no authority to reduce a federal inmate’s sentence
based on special circumstances. Share v. Krueger, 553 F. App’x 207, 209 (3d Cir. 2014)
(citing United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997).
III.

Conclusion
For the above stated reasons, the court will dismiss this § 2241 petition for lack of

jurisdiction.
An appropriate order will issue.
BY THE COURT:
s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
Dated:

May 25, 2017