Santiago v. Bureau of Prisons et al
Filing
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MEMORANDUM (Order to follow as separate docket entry) re: 1 Petition for Writ of Habeas Corpus filed by Jose Santiago. Signed by Honorable Matthew W. Brann on 6/13/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSE SANTIAGO,
Petitioner,
v.
BUREAU OF PRISONS, ET AL.,
Respondents.
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No.: 4:17-CV-892
(Judge Brann)
MEMORANDUM OPINION
JUNE 13, 2017
I.
BACKGROUND
This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241
was filed by Jose Santiago, an inmate presently confined at the Allenwood Federal
Correctional Institution, White Deer, Pennsylvania (FCI-Allenwood). Named as
Respondents are the Federal Bureau of Prisons and FCI-Allenwood Warden
Spaulding. The required filing fee has been paid. Service of the petition has not
been ordered.
Petitioner was convicted of racketeering as well as conspiracy to distribute
narcotics and commit extortion following a 2002 jury trial in the United States
District Court for the Southern District of New York. See United States v.
Santiago, 126 Fed. Appx. 21 (2d Cir. 2005). He was thereafter sentenced on
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December 3, 2002, as a career offender, to a 70 year term of imprisonment.1
Following an appeal, his case was remanded by the United States Court of Appeals
for the Second Circuit for further proceedings consistent with United States v.
Booker, 543 U.S. 220 (2005). See id. Santiago’s request for resentencing was
denied by the district court on June 7, 2011.
Petitioner next filed a petition for relief pursuant to 28 U.S.C. § 2255 with
the sentencing court on June 7, 2012. See Santiago v. United States, No. 12-4522,
2012 WL 12857962 (S.D.N.Y. Sept. 10, 2012). His petition is described as
asserting a claim of ineffective assistance of counsel with respect to both plea
negotiations and the denial of his request for resentencing. See id. at *1. The §
2255 petition was denied on September 10, 2012. The denial was thereafter
affirmed. See Santiago v. United States, 563 Fed. Appx. 30 (2d Cir. 2014). A
petition for writ of certiorari was denied by the Supreme Court of the United
States. See Santiago v. United States, __ U.S.__, 135 S. Ct. 975 (2015)
Santiago acknowledges that on August 1, 2016 he filed a motion seeking
permission to file a successive § 2255 action based upon the Supreme Court’s
decision in Johnson v. United States, 576 U.S.___ , 135 S. Ct. 2551 (2015) which
1
Santiago explains that prior New York state drug convictions for were used as predicate
offenses to designate him as being a career offender. See Doc. 1, p. 7.
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was granted by the Second Circuit.2
In his pending action, Santiago claims that he is entitled to federal habeas
corpus relief because he was the subject of “a mis-applied [sic] career offender
sentence enhancement.” Doc. 1, ¶ 4.
Specifically, Petitioner contends that prior
New York state drug convictions which were used as predicate offenses in
designating him as a career offender are no longer considered controlled substance
offenses under the standards announced in Descamps v. United States, 133 S.Ct.
2276 (2013)3 and Mathis v. United States, ___ U.S. ___, 136 S. Ct 2243 (2016).
See id. at ¶ 13. Petitioner concludes that he is factually innocent of being a career
offender under Begay v. United States, 553 U.S. 137 (2008).4 As relief, Santiago
asks to be “discharged from the erroneous career offender penalty.” Doc. 1, ¶ 15.
II.
DISCUSSION
Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4
(“Preliminary Review”) of the Rules Governing Section 2254 Cases in the United
2
In Johnson, the United States Supreme Court held that the residual clause of the ACCA was
unconstitutionally vague. See United States v. Terry, No. 14-cv-1006, 2015 WL 4255527 (W. D.
Pa. July 14, 2015).
3
Offenses for a violent felony or a serious drug offense may used as predicate offenses for a
Armed Career Criminal Act (ACCA) sentence enhancement. See 18 U.S.C. § 924(e)(1).
Descamps concerned the question of whether the use of a burglary conviction as a violent felony
offense was appropriate.
4
Unlike the present case, Begay regarded a driving under the influence conviction which was
used as a sentence enhancement. See Brown v. United States, 384 Fed. Appx. 53,54 (3d Cir.
2010).
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States District Courts, 28 U.S.C. foll. § 2254 (2004). See, e.g., Mutope v.
Pennsylvania Board of Probation and Parole, No. 3:CV-07-472, 2007 WL 846559
*2 (M.D. Pa. March 19, 2007)(Kosik, J.). The provisions of Rule 4 are applicable
to § 2241 petitions under Rule 1(b)). See, e.g., Patton v. Fenton, 491 F. Supp. 156,
158-59 (M.D. Pa. 1979)(Nealon, J.).
Rule 4 provides in pertinent part: “If 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.” A
petition may be dismissed without review of an answer “when the petition is
frivolous, or obviously lacking in merit, or where. . . the necessary facts can be
determined from the petition itself. . . .” Gorko v. Holt, No. 4:CV-05-596, 2005
WL 1138479 *1 (M.D. Pa. May 13, 2005)(McClure, J.)(quoting Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970).
A habeas corpus petition under § 2241 “allows a federal prisoner to
challenge the ‘execution’ of his sentence.” Woodall v. Federal Bureau of Prisons,
432 F.3d 235, 241 (3d Cir. 2005). Federal habeas corpus review may be employed
by a prisoner to challenge either the fact or duration of his confinement in prison.
Preiser v. Rodriguez, 411 U.S. 475 (1973), Telford v. Hepting, 980 F.2d 745, 748
(3d Cir. 1993). However, relief is available only “where the deprivation of rights
is such that it necessarily impacts the fact or length of detention.” Leamer v.
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Fauver, 288 F.3d 532, 540 (3d Cir. 2002).
Federal prisoners challenging the validity of their sentence, and not the
execution of a sentence, are generally limited to seeking relief by way of a motion
pursuant to § 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); Russell v.
Martinez, 325 Fed. Appx. 45, 47 (3d Cir. Apr. 30, 2009)(“a section 2255 motion
filed in the sentencing court is the presumptive means for a federal prisoner to
challenge the validity of a conviction or sentence”) . A challenge can only be
brought under § 2241 if “it . . . appears that the remedy by [a § 2255] motion is
inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
This language in § 2255, known as the safety-valve clause, must be strictly
construed. Dorsainvil, 119 F.3d at 251; Russell, 325 Fed. Appx. at 47 (the safety
valve “is extremely narrow and has been held to apply in unusual situations, such
as those in which a prisoner has had no prior opportunity to challenge his
conviction for a crime later deemed to be non-criminal by an intervening change in
the law”).
“It is the inefficacy of the remedy, not the personal inability to use it, that is
determinative.” Cradle v. United States, 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
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§ 2255.” Id. at 539. See also, Alexander v. Williamson, 324 Fed Appx. 149, 151
(3d Cir. Apr. 16, 2009).
Petitioner’s instant claim is not based upon a contention that the conduct
which led to his conviction is no longer criminal as a result of some change in the
law. Rather, Santiago’s action only challenges his sentence enhancement for being
a career offender. As recognized by the Honorable Kim R. Gibson in Pollard v.
Yost, No. 07-235, 2008 WL 4933599, at *6 (W.D. Pa. Nov. 18, 2008), for a
challenge to a federal conviction to be presented by a federal inmate by way of a §
2241 petition, there must not only be “a claim of actual innocence but a claim of
actual innocence coupled with the inability to have brought the claim before
because of a change in the construction of the criminal statute by a court having the
last word on the proper construction of the statute, which change rendered what
had been thought to be criminal within the ambit of the statute, no longer
criminal.”
As previously discussed, Santiago is challenging the validity of his career
offender sentence enhancement which was imposed by the Southern District of
New York. Since Petitioner’s argument concerns the validity of his sentence, he
must follow the requirements of § 2255. Santiago indicates that his pending
argument was not previously raised because of futility. This Court agrees that
Mathis was not decided until 2016, after final disposition of Petitioner’s direct
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appeal and § 2255 action and, thus, could not have been asserted during those
proceedings.
As noted earlier, Petitioner’s pending argument is not based upon a
contention that his conduct is no longer criminal as a result of some change in the
law made retroactive to cases on collateral review. Santiago has also not shown
that he was unable to present his claim in a successive § 2255 proceeding or that it
is based upon any newly discovered evidence. More importantly, challenges to
career offender status are not properly raised under § 2241. See Thomas v.
Warden, Fort Dix, No. 17-2502, 2017 WL 2225574 *2 (D.N.J. May 19, 2017)
It has also been recognized by courts within this circuit that Descamps does
not apply retroactively to cases on collateral review. See United States v. Nobles,
No. 07-29, 2015 WL 1208050 * 1 (E.D. Pa. March 17, 2015); United States v.
Wolf, Civil No. 1:CV-04-347, 2014 WL 3339601 *2 (M.D. Pa. 2014)(Caldwell,
J.). Likewise, the United States Supreme Court has not found that Mathis applies
retroactively to cases on collateral review. See United States v. Villella, No. 16544, 2017 WL 1519548 *6 (W.D. Pa. April 27, 2017).
Clearly, Santiago’s pending claim does not fall within the narrow Dorsainvil
exception to the general rule that § 2255 provides the exclusive avenue by which a
federal prisoner may mount a collateral challenge to his conviction or sentence.
See Levan v. Sneizek, 325 Fed. Appx. 55, 57 (3d Cir. April 2009); Jordan v.
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United States, Civil No. 3:CV-14-2048, 2014 WL 7212859 *1-2 (M.D. Pa. Dec.
17, 2014) (Munley, J) (since Descamps cannot be retroactively applied, the
Dorsainvil exception does not apply); Wyatt v. Warden Fort Dix, No. 17-1335,
2017 WL 1367239 *2 (D.N.J. April 10, 2017)(Mathis based sentencing
enhancement claim not properly asserted under § 2241).
Since there is no basis for a determination that § 2255 is inadequate or
ineffective to test the legality of Petitioner’s career offender sentencing
enhancement, his § 2241 petition will be dismissed for lack of jurisdiction. This
dismissal has no effect on Petitioner’s right to seek permission to pursue a
successive § 2255 action.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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