Martinez v. Coakly et al

Filing 12

ORDER adopting Report and Recommendations: The Report and Recommendation 6 is ORDERED ADOPTED for the reasons more fully stated in the magistrate judges report. ORDERED that the petitioners § 2241 petition 1 be DENIED and DISMISSED WITH PR EJUDICE. Further, Petitioners Motion for Emergency Hearing for Writ of Habeas Corpus, to Review Cause of His Detention, Be Considered Illegal, under 28 U.S.C. § 2241, and That This Court Enter an Order for His Immediate Release on His Own Recogn izance 10 is DENIED. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court. As a final matter, upon an independent review of the record, this Court hereby DENIES a certificate of appealability. Signed by District Judge John Preston Bailey on 2/2/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Elkins STEVEN MARTINEZ, Petitioner, v. Civil Action No. 2:16-CV-27 Judge Bailey JOE COAKLY, Warden USP Hazleton, and LORETTA LYNCH, Attorney General, Respondents. ORDER ADOPTING REPORT AND RECOMMENDATION On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Robert W. Trumble [Doc. 6]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Trumble filed his R&R on June 9, 2016, wherein he recommends this Court deny and dismiss the petitioner’s § 2241petition. Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge’s findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo 1 review and the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Trumble’s R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). The docket reflects that service was accepted on June 13, 2016. [Doc. 7]. The petitioner filed his Objection on July 1, 2016. [Doc. 8]. Accordingly, this Court will review the portions of the R&R to which the petitioner objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error. I. BACKGROUND Petitioner is a federal inmate housed at FCI Hazelton and is challenging the validity of sentences imposed by the United States District Court for the Southern District of New York. In 1993, Guillermo Gonzalez, a postal worker, was shot and killed during the course of a robbery that occurred in the Bronx, New York. [M.D. Fla. 5:13-CV-356, Doc. 16]. In 1996, a federal jury in the District Court for the Southern District of New York found Martinez guilty of conspiring to murder and murdering Gonzalez, in violation of 18 U.S.C. §§ 1117, 1114 and 1111, and conspiring to rob and robbing Gonzalez, in violation of 18 U.S.C. §§ 371 and 2114. See United States v. Gallego, 191 F.3d 156, 160 (2d Cir. 1999); see also United States v. Gallego, 944 F.Supp. 309, 312 (S.D. N.Y. 1996) (order denying motion for a new trial). Petitioner was subsequently sentenced to life imprisonment [Id.]. On appeal, Petitioner’s conviction and sentence was affirmed by the Second Circuit Court of Appeals. See United States v. Gallego, 191 F. 3d 156, 160 (2d Cir. 1999) (opinion by Sotomayor, 2 J.). In 2001, Martinez filed a motion under 28 U.S.C. § 2255 in the Southern District of New York, which was denied. [Id.]. Ten years later, Martinez filed a Freedom of Information Act (FOIA, 5 U.S.C. § 552) request with the Postal Service demanding Gonzalez’ employment records. [Id.]. This effort was made with the hope of demonstrating that Gonzalez was a contract driver and not a direct employee of the Postal Service thereby giving rise to an argument that Gonzalez was not a protected “officer or employee of the United States” within the meaning of 18 U.S.C. § 1114. See Martinez v. U.S. Postal Service, 840 F.Supp.2d 366, 368 (D. D.C. 2012). The Postal Service contended that it had no record of Gonzalez’ employment and that the personnel files of former postal workers “are retired to and then retained at the National Records Center in St. Louis . . ..” [Id.]. There is no evidence that Petitioner made any attempt to retrieve these files from the National Records Center. [Id.]. Thereafter, Petitioner applied to the Second Circuit Court of Appeals under 28 U.S.C. § 2255(h)(1) for permission to file a second section 2255 petition on the basis of “newly discovered evidence,” namely, the Postal Service response to his FOIA request. [Id.]. The Court of Appeals denied such leave and concluded that the lack of a personnel file does not prove that the victim was not a postal employee and, in any event, Petitioner did not explain why the issue could not have been explored prior to, or during, trial. [Id.]. The Court of Appeals further concluded that Petitioner’s assertions did not support his actual innocence argument. [Id.]. On July 25, 2013, Petitioner filed a petition for a writ of habeas corpus under 18 U.S.C. § 2241 in the United States District Court for the Middle District of Florida and asserted the same unsuccessful claim presented to the Second Circuit as a basis for his 3 request for leave to file a successive petition under § 2255. [Id.]. Pursuant to an Order filed on October 28, 2014, the Middle District of Florida dismissed Petitioner’s section 2241 petition because he failed to provide additional evidence that was not already presented to the Second Circuit Court of Appeals when it ruled against Petitioner on his section 2255 petition. [Id.]. Thereafter, on November 17, 2014, Petitioner filed a Notice of Appeal with the Eleventh Circuit Court of Appeals based on the denial of his section 2241 petition. [Id., Doc. 19]. On July 14, 2015, the Eleventh Circuit affirmed the dismissal of Petitioner’s petition due to a lack of subject matter jurisdiction. [Id., Doc. 24]. The Supreme Court of the United States declined to grant a writ of certiorari in Petitioner’s case on December 1, 2015. [Id., Doc. 26]. Petitioner has filed this section 2241 on the same grounds as his petition in Florida. [Doc. 1]. II. Discussion This Court agrees with the Magistrate Judge that the petition should be denied. First, the Second Circuit has already ruled against Petitioner on the first two issues for which he seeks relief herein. Furthermore, there is no showing whatsoever that the procedure he pursued under section 2255 was “inadequate or ineffective” to test the legality of his detention. On the contrary, the Second Circuit considered and acted upon his claim and the fact that he was denied relief, does not render the process inadequate or ineffective. Prisoners seeking to challenge the validity of their convictions or sentences are required to proceed under section 2255 in the district court of conviction. A petition for writ 4 of habeas corpus, pursuant to section 2241, on the other hand, is intended to address the execution of a sentence, rather than its validity, and is to be filed in the district where the prisoner is incarcerated. Examples of an appropriate use of section 2241 include “actions challenging the computation of parole, computation of good time or jail credits, prison disciplinary actions, or imprisonment allegedly beyond the expiration of a sentence.” Anderson v. Pettiford, 2007 WL 15777676 (D.S.C. May 31, 2007)(internal citations omitted). While the terms of section 2255 expressly prohibit prisoners from challenging their convictions and sentences through a habeas corpus petition under section 2241, there is nonetheless a “savings clause” in section 2255. The savings clause allows a prisoner to challenge the validity of his conviction under section 2241 if he can demonstrate that section 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255. The law is clearly developed, however, that merely because relief has become unavailable under section 2255 because of a limitation bar, the prohibition against successive petitions, or a procedural bar due to failure to raise the issue on direct appeal, does not demonstrate that the section 2255 remedy is inadequate of ineffective. In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). A petitioner bears the burden of demonstrating that the section 2255 remedy is inadequate or ineffective, and the standard is an extremely stringent one. In the Fourth Circuit, section 2255 is deemed to be “inadequate and ineffective” to test the legality of a conviction only when all three of the following conditions are satisfied: (1) at the time of the conviction, the settled law of this Circuit or of the 5 Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first section 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal, and (3) the prisoner cannot satisfy the gate-keeping provisions of section 2255 because the new rule is not one of constitutional law. See In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added). It appears that Petitioner is raising the savings clause and claiming the element of actual innocence as to all of the issues raised in his pending petition. However, in order to raise a claim of actual innocence under section 2241, Petitioner must first establish that he is entitled to review under section 2241 by meeting the Jones requirements. In Bousley v. United States, 523 U.S. 614, 623 (1998), the Supreme Court held that in order to “open the portal” to a § 2241 proceeding, the petitioner must first show that he is entitled to the savings clause of § 2255. Thus, a freestanding claim of actual innocence is not cognizable in federal habeas corpus. Petitioner cannot satisfy the required elements of the saving clause in order to obtain relief pursuant to section 2241. In the instant case, even if Petitioner satisfied the first and the third elements of Jones, the crimes for which Petitioner was convicted remain criminal offenses, and therefore, Petitioner cannot satisfy the second element of Jones. Therefore, because Petitioner clearly attacks the validity of his conviction and sentence, and fails to establish that he meets the Jones requirements, Petitioner has not demonstrated that section 2255 is an inadequate or ineffective remedy and has improperly filed a section 2241 6 petition. In his objections, Petitioner cites McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), for the proposition that “a credible showing of innocence may allow Mr. Martinez to pursue his constitutional claims, that he is actually innocent and in custody in violation of the Constitution, . . . on the merits notwithstanding the existence of a procedural bar to relief” [Doc. 8, p.2]. Mr. Martinez’ reliance on McQuiggin is without merit. As noted by Judge Groh in Ruff v. Perdue, 2014 WL 4084326 (N.D. W.Va. August 19, 2014), “In McQuiggin, the Court held that a prisoner filing a first-time federal habeas petition could overcome the oneyear statute of limitations in § 2244(d)(1) upon a showing of ‘actual innocence’ under the Schlup1 standard. 133 S.Ct. at 1928. Thus, McQuiggin held that a claim of actual innocence can overcome the expiration of the statute of limitations only for an untimely first habeas application. 133 S.Ct. at 1928. Key to understanding the holding in McQuiggin is that the Supreme Court concluded that Congress, through its silence on the issue, did not intend to eliminate the pre-existing equitable ‘actual innocence’ exception for an untimely first-time filer. See id. at 1934. Notably for petitioner, the McQuiggin Court expressly recognized that Congress, through § 2244(b), had intended to ‘modify’ and ‘constrain[ ]’ the ‘actual innocence’ exception with respect to second or successive petitions. See id. at 1933–34. Accordingly, nothing in McQuiggin allows petitioner to repeatedly attempt to attack his 924(c) conviction and sentence on the same grounds, through successive § 2244 or § 2255 motions, let alone via a § 2241 motion.” Ruff v. 1 Schlup v. Delo, 513 U.S. 298 (1995). 7 Perdue, 2014 WL 4084326, at *5. III. CONCLUSION Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 6] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly, this Court ORDERS that the petitioner’s § 2241 petition [Doc. 1] be DENIED and DISMISSED WITH PREJUDICE. Further, Petitioner’s Motion for Emergency Hearing for Writ of Habeas Corpus, to Review Cause of His Detention, Be Considered Illegal, under 28 U.S.C. § 2241, and That This Court Enter an Order for His Immediate Release on His Own Recognizance [Doc. 10] is DENIED. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court. As a final matter, upon an independent review of the record, this Court hereby DENIES a certificate of appealability, finding that the petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). It is so ORDERED. The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se petitioner. DATED: February 2, 2017. 8

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