Marino v. Masters et al

Filing 32

MEMORANDUM OPINION AND ORDER: For good cause shown, petitioner's 29 motion for an extension to file his objections to the PF&R, is GRANTED. The court DENIES a certificate of appealability. The Court ADOPTS the factual and legal analysis contained within the PF&R, DENIES petitioner's petition for a writ of habeas corpus, and DIRECTS the Clerk to remove this case from the court's docket. Signed by Senior Judge David A. Faber on 3/6/2017. (cc: Petitioner, pro se; attys) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
VINCENT MICHAEL MARINO,
Petitioner,
v.

Civil Action No: 1:13-32690

BART MASTERS, Warden,
FCI McDowell,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is petitioner’s petition for a writ
of habeas corpus.

(Doc. No. 1).

By Standing Order, this matter

was referred to United States Magistrate Judge Dwane L. Tinsley
for submission of findings and recommendations regarding
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

(Doc. No. 4).

Magistrate Judge Tinsley submitted to the court his Proposed
Findings and Recommendation on March 17, 2016, in which he
recommended that the district court deny petitioner’s petition
for a writ of habeas corpus and remove this matter from the
court’s docket.

(Doc. No. 27 at 7).

In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge Tinsley’s
Findings and Recommendation.

Petitioner filed a motion for an

extension of time to reply to the PF&R, (Doc. No. 29),1 and filed
his objections on April 6, 2016.
I.

(Doc. Nos. 30, 31).

Background

On December 22, 1999, petitioner was convicted in the United
States District Court for the District of Massachusetts on one
count of racketeering activity in violation of 18 U.S.C. §§ 2 and
1962(c), (Count 1); one count of RICO conspiracy in violation of
18 U.S.C. § 1962(d), (Count 2); and one count of conspiracy to
murder thirteen individuals in aid of racketeering in violation
of 18 U.S.C. § 1959, (Count 3).
F.3d 11, 18 (1st Cir. 2002).

United States v. Marino, 277

The United States Court of Appeals

for the First Circuit affirmed petitioner’s convictions and the
Supreme Court of the United States denied petitioner a writ of
certiorari.

Id. at 39; Marino v. United States, 536 U.S. 948

(2002).
Petitioner filed a motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255 on June 30, 2003 in the United
States District Court for the District of Massachusetts.
v. United States, Case No. 1:03-cv-11657, Doc. No. 1.

Marino

The

district court denied petitioner’s § 2255 motion and the First
Circuit affirmed.

Id. at Doc. Nos. 23, 34.

1

For good cause shown, petitioner’s motion for an extension to
file his objections to the PF&R, (Doc. No. 29), is GRANTED.
2

Additionally, petitioner has filed a number of petitions
under § 2241 seeking habeas relief, including petitions in the
Eastern District of New York, the District of Columbia, the
Western District of Oklahoma, the Western District of Louisiana,
as well as the instant petition filed in this district.

Marino

v. United States, Case Nos. 1:07-cv-12069 and 1:07-cv-12070, Doc.
No. 1 (transferred to D. Mass as successive § 2255); Marino v.
Martinez, Case No. 1:11-cv-1807, Doc. No. 1 (transferred to
S.D.W. Va.); Marino v. Kastner et al., 2010 WL 3522455, No. CIV10-664-R, (W.D. Okla. Sept. 8, 2010); Marino v. Sherrod et al.,
2012 WL 266855, Civil Action No 1:10-CV-01656 (W.D. La. Jan. 30,
2012); Marino v. Martinez, 2014 WL 5460613, Civil Action No.
1:12-00394 (S.D.W. Va. Oct. 27, 2014).

None of these have been

successful and most courts have found that petitioner’s petitions
actually seek relief offered under § 2255, rather than § 2241.
On December 19, 2013, petitioner filed the instant petition
pursuant to 28 U.S.C. § 2241.

(Doc. No. 1).

Throughout his

petition and memorandum in support, petitioner repeatedly argues
that he is actually innocent of the crimes of which he was
convicted.

(Doc. Nos. 1 and 2).

Magistrate Judge Tinsley

concluded in the PF&R that petitioner’s claims challenged the
validity of his convictions and sentences, rather than the
execution of his sentence and, as such, he sought relief under §
2255, rather than § 2241.

(Doc. No. 27 at 5–7).

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The Magistrate

Judge further found that petitioner could not use the savings
clause in § 2255(e) to permit review of his claims under § 2241.
Id. at 6–7.

As a result, the Magistrate Judge recommended denial

of petitioner’s petition.
II.

Id. at 7.

Petitioner’s Objections

Petitioner filed a number of documents objecting to the
PF&R, but very little of the arguments contained within these
filings actually relates to the Magistrate Judge’s conclusion
that petitioner failed to demonstrate that his remedy under §
2255 was inadequate or ineffective.2

Petitioner argues that the

savings clause of § 2255(e) “is confined to instances of actual
innocence,” and that he should be permitted to assert his
innocence through a § 2241 petition.

(Doc. No. 30 at 2–5).

However, petitioner fails to acknowledge that he must first
demonstrate that his remedy under § 2255 is either inadequate or
ineffective.
As explained in the PF&R, a petitioner’s remedy under § 2255
is inadequate or ineffective when:
(1) at the time of conviction, settled law of this
circuit or the Supreme Court established the legality
of the conviction; (2) subsequent to the prisoner’s
direct appeal and first § 2255 motion, the substantive
law changed such that the conduct of which the
2

The court notes that petitioner filed two separate documents
objecting to the PF&R. These two documents total approximately
fifty-five pages, yet petitioner did not file a motion to exceed
the standard page length restrictions found in Local Rule of
Civil Procedure 7.1(a)(2).
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petitioner was convicted is deemed not to be criminal;
and (3) the prisoner cannot satisfy the gatekeeping
provisions of
§
2255
because
the
new
rule
is
not
one
of
constitutional law.
In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000).

Only after

demonstrating the existence of these three factors can a
petitioner use § 2241 to address those issues typically addressed
in a § 2255 motion.
But petitioner’s objections do little to address this
critical finding of the PF&R.

Petitioner states that he “is

asserting that there has been an intervening change in
substantive law that has established his actual innocence of the
underlying conviction depicted in Count: [sic] One: RICO & Count
Two: RICO conspiracy & that Marino has demonstrate [sic] that
section 2255 is inadequate or ineffective to test the legality of
Marino’s detention and, thus, his claims are proper for
consideration under 28 U.S.C. § 2241.”

(Doc. No. 30 at 4).

However, petitioner does not describe this intervening change in
substantive law nor does he argue that this new rule is not one
of constitutional law.

He has not demonstrated in either his

initial filing or his objections to the PF&R that the relief
under § 2255 is inadequate or ineffective.

His petition is

plainly one that challenges the validity of his conviction,
rather than its execution and petitioner has not demonstrated
that he can avail himself of the savings clause in § 2255(e).

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As

a result, the court must overrule his objections and deny his
petition.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

Id. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336–38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683–84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly the

court DENIES a certificate of appealability.
III. Conclusion
For the reasons stated above, the court ADOPTS the factual
and legal analysis contained within the PF&R, DENIES petitioner’s
petition for a writ of habeas corpus, (Doc. No. 1), and DIRECTS
the Clerk to remove this case from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and petitioner,
pro se.

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It is SO ORDERED this 6th day of March, 2017.
ENTER:
David A. Faber
Senior United States District Judge

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