Cruz-Danzot v. United States of America et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 10/12/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MIGUEL ANGEL CRUZ-DANZOT,
J. BALTAZAR, WARDEN,
OCTOBER 12, 2017
Miguel Angel Cruz-Danzot, an inmate presently confined at the Canaan
United States Penitentiary, Waymart, Pennsylvania (USP-Canaan) filed this pro se
habeas corpus petition pursuant to 28 U.S.C. § 2241. Named as Respondent is
USP-Canaan Warden J. Baltazar. Accompanying the petition is an in forma
pauperis application which will be granted for the filing of this action with this
Petitioner states that he entered a guilty plea in the United States District
Court for the District of Puerto Rico on a charge of conspiracy to possess with
intent to distribute at least 28 grams of cocaine base within 1,000 feet of a
protected location Following his plea, Petitioner was sentenced on July 20, 2012
to a seventy-eight (78) month term of imprisonment. See Doc. 1, ¶ 4.
An exhibit attached to the petition indicates that Cruz-Danzot filed an appeal
which was dismissed as untimely on January 20, 2016. See Doc. 3-2, p. 2.
Petitioner also admits that he previously filed a motion with the sentencing court
pursuant to 28 U.S.C. § 2255 which was dismissed as untimely on April 19, 2017.
See Doc. 1, ¶ 10.
Cruz-Danzot’s pending action claims that he is entitled to federal habeas
corpus relief under Burrage v. United States, 134 S.Ct. 881 (2014), McFadden v.
United States, 135 S.Ct. 2298 (2015), and Rosemond v. United States, 134 S.Ct.
1240 (2014). Petitioner argues that under the principles announced in those postsentence decisions, his guilty plea was involuntary and unintelligent.
In Burrage, the Supreme Court in addressing a sentencing enhancement
issue held that death only results from drug trafficking when the use of the
controlled substance is the but for cause of the victim’s death. It added that a
penalty enhancement can only be applied if a jury finds beyond a reasonable doubt
that the victim’s use of a drug distributed by the defendant was a “but for” cause of
death. McFadden recognized that the government must prove that a defendant
charged with a controlled substance offense knew that the substance was a
controlled substance. Rosemond established that an accomplice must have
advanced knowledge of the crime the principal is planning to commit.
Standard of Review
Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4
(“Preliminary Review”) of the Rules Governing Section 2254 Cases in the United
States District Courts, 28 U.S.C. foll. § 2254 (2004). See, e.g., Mutope v.
Pennsylvania Board of Probation and Parole, 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).
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, Civ. No. 4:05-cv-956,
2005 WL 1138479 *1 (M.D. Pa. May 13, 2005)(McClure, J.)(quoting Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970).
Since he initiated his action before this Court, Petitioner is apparently
arguing that he may bring his present claims of an unconstitutional guilty plea and
sentence via a § 2241 petition. It would appear that it is Cruz-Danzot’s contention
that this Court has jurisdiction over his § 2241 action by virtue of his ongoing
detention at USP-Canaan.
When challenging the validity of a federal sentence and not its execution, a
federal prisoner is generally limited to seeking relief by way of a motion pursuant
to 28 U.S.C. § 2255.1 In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); Russell
v. Martinez, 325 Fed. Appx. 45, 47 (3d Cir. 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).
A federal prisoner may challenge the execution of his sentence by initiating an action pursuant
to § 2241. See Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).
“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. See also, Alexander v. Williamson, 324 Fed. Appx. 149, 151
(3d Cir. 2009).
It is initially noted that “the Supreme Court has not made Burrage
retroactive.” Alvarez v. Hastings, Civ. No. 2:14-cv-70, 2015 WL 4092657 *2
(S.D. Ga. July 6, 2015); Gibson v. Thomas, Civ. No. 3:14-cv-820, 2016 WL
213618 *5 (M. D. Pa. Jan. 19, 2016)(Caputo, J.) (the Supreme Court did not make
Burrage retroactive to cases on collateral review as such it does not fall within the
narrow Dorsainvil exception); Harrington v. Holland, Civ. No. 14-192, 2015 WL
2065945 * 3 (E.D. Ky May 4, 2015) (Burrage is not a decision which is
retroactively applicable to cases on collateral review).
Courts have also recognized that “the rule articulated in Rosemond does not
apply retroactively to cases on collateral review. Branham v. Oddo, Civ. No. 1:16cv-553, 2016 WL 2961387 *3 (M.D. Pa. May 23, 2016)(Jones, J.); Williams v.
Spaulding, Civ. No. 3:15-cv-1992, 2015 WL 8332424 *3 (M.D. Pa. Dec. 9,
2015)(Munley, J.). Finally, based upon a review of McFadden there is nothing to
indicate that it changed the substantive law pertaining to Petitioner’s cocaine base
related conviction such that his conduct is now deemed not to be criminal.
Petitioner is clearly challenging the validity of his guilty plea and sentence
entered in the District of Puerto Rico. He must do so by following the
requirements of § 2255. As previously noted, Cruz-Danzot states that he filed a
direct appeal and a § 2255 action. A copy of his § 2255 petition submitted by
Cruz-Danzot shows that his pending argument was raised in his unsuccessful §
2255 action. See Doc. 3-2, p. 2.
Cruz-Danzot’s instant claim is not based upon a contention that his conduct
is no longer criminal as a result of some change in the law. Nor has Petitioner
shown that he was unable to present his claims via a § 2255 proceeding. 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.”
Clearly, Petitioner’s pending claim does not fall within the narrow
Dorsainvil exception to the general rule that section 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). As considered in Cradle, the fact that Petitioner’s § 2255 action,
which asserted the same claims presently pending before this Court, was dismissed
as being time barred does not warrant a determination that § 2255 is inadequate or
ineffective to test the legality of Petitioner’s guilty plea.
Based upon Petitioner’s failure to present this Court with any authority to
support a determination that any federal court has held that a Burrage or Rosemond
based claim may be pursued via a § 2241 proceeding, it is apparent that habeas
corpus review is not appropriate here. Accordingly, Cruz-Danzot’s § 2241 petition
will be dismissed without prejudice. This dismissal does not preclude Petitioner
from again seeking authorization from the appropriate Court of Appeals to file a
second or successive § 2255 petition.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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