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)

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