Rivera-Guerra v. Coakley
Filing
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MEMORANDUM OPINION, ORDER and NOTICE: The court finds that Petitioner's 1 Petition for a Writ of Habeas Corpus Under 28 U.S.C. Section 2241 should be construed as a Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; Petitioner is NOTIFIED that pursuant to the Antiterrorism and Effective Death Penalty Act, Amendments to 28 U.S.C. Section 2255 motions for habeas relief filed under Section 2255 must be filed within one year from the date on which the judgment of conviction becomes final; Petitioner is NOTIFIED that Section 2255 also limits a Petitioner's ability to file a second or successive Section 2255 motion; it is ORDERED that Petitioner should inform the court in wri ting by 6/19/2015 is he does not wish to have his Petition re-characterized as a 2255 motion. Should Petitioner not agreed the re-characterization of his Petition as a 2255 motion, Proposed Findings of Fact and Recommendations will be issued on the P etition as filed under Section 2241. Should Petitioner fail to respond to this Notice, the Petition will be considered filed under Section 2255 and transfer of the case to the US District Court, District of Puerto Rico will be recommended. Signed by Magistrate Judge Cheryl A. Eifert on 5/7/2015. (cc: attys; Petitioner) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
JOSE M. RIVERA-GUERRA,
Petitioner,
v.
Civil Action No. 5:15-cv-05184
JOE COAKLEY, Warden,
FCI Beckley,
Respondent.
MEMORANDUM OPINION, ORDER and NOTICE
Pending are Petitioner’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2241,1 (ECF No. 1). By Standing Order, this matter is referred to the undersigned United
States Magistrate Judge for the submission of proposed findings of fact and a
recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 4).
Having examined Petitioner’s Section 2241 Petition, the undersigned finds that it should
be construed as a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody.
On October 19, 2012, Petitioner was convicted in the United States District Court
for the District of Puerto Rico for violating 18 U.S.C. § 924(c)(1)(A) by possessing a
firearm in furtherance of a drug trafficking crime. (ECF No. 1 at 1). Petitioner was
sentenced to sixty months of imprisonment. (Id.). Petitioner now contends that the
Because Petitioner is acting pro se, the documents which he has filed are held to a less stringent standard
than if they were prepared by a lawyer and therefore are construed liberally. See Haines v. Kerner, 404
U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
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Puerto Rico District Court erred by failing to suppress evidence obtained by law
enforcement during a traffic stop of Petitioner; that Petitioner had ineffective assistance
of counsel; and that Petitioner did not knowingly and intelligently enter into the plea
agreement that formed the basis of his conviction. (Id. at 6-7). Petitioner prays that the
Court “vacate the present conviction, judgment, and sentence in the instant case and
conduct an evidentiary hearing with newly appointed counsel to represent him.” (ECF
No. 1 at 8). Given that Petitioner attacks the validity of his conviction and sentence, the
undersigned finds that Petitioner’s claims are ones properly considered under Section
2255, not Section 2241.2
The decision of the United States Court of Appeals for the Fourth Circuit in
United States v. Emmanuel, 288 F.3d 644, 649 (4th Cir. 2002), holds “that if a prisoner
files a motion that is not denominated a § 2255 motion and the court at its option
prefers to convert it into the movant’s first § 2255 motion, the court shall first advise the
movant that it intends to so re-characterize the motion.” In its notice, the court is
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Allegations that a federal conviction or sentence is invalid are appropriately considered under Section
2255, and allegations respecting the execution of a federal sentence, e.g., time credit calculations, are
properly considered under Section 2241. The remedy under Section 2241 is not an additional, alternative
or supplemental remedy to that prescribed under Section 2255. “A section 2241 petition that seeks to
challenge the validity of a federal sentence must either be dismissed or construed as a section 2255
motion.” Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). However, in exceptional circumstances, when
a petitioner can show that Section 2255 provides an inadequate or ineffective remedy, a challenge to a
federal conviction or sentence may be brought under Section 2241. In Re Jones, 226 F.3d 328, 333 (4th
Cir. 2000)(“[W]hen § 2255 proves ‘inadequate or ineffective to test the legality of ... detention,’ a federal
prisoner may seek a writ of habeas corpus pursuant to § 2241.”); Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996). The fact that relief under Section 2255 is barred procedurally or by the gatekeeping
requirements of Section 2255 does not render the remedy of Section 2255 inadequate or ineffective. In re
Jones, 226 F.3d at 332; Young v. Conley, 128 F.Supp.2d 354, 357 (S.D.W.Va.), aff’d, 291 F.3d 257 (4th Cir.
2001), cert. denied, 537 U.S. 938, 123 S.Ct. 46, 154 L.Ed.2d 242 (2002). The United States Court of
Appeals for the Fourth Circuit has stated that Ҥ 2255 is inadequate and ineffective to test the legality of a
conviction 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 prisoner 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 at 333-34.The petitioner bears the burden of showing
the inadequacy or ineffectiveness of a Section 2255 Application by demonstrating the Jones criteria.
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required to advise the Petitioner of the restrictions and limitations under 28 U.S.C. §
2255. Id. at 649. The court should also provide the Petitioner with an opportunity to
withdraw the Petition, or amend it to add all of the § 2255 claims he believes are
available to him.
Therefore, Petitioner is hereby NOTIFIED that pursuant to the Antiterrorism
and Effective Death Penalty Act [AEDPA] Amendments to 28 U.S.C. § 2255, motions for
habeas relief filed under Section 2255 must be filed within one year from “the date on
which the judgment of conviction becomes final.” The one-year limitation period begins
to run from the latest of the following dates:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence. 28
U.S.C. § 2255.
Petitioner is further NOTIFIED that Section 2255 also limits a Petitioner’s
ability to file a second or successive Section 2255 motion. Petitioner is advised that if he
chooses to later file a second or successive Section 2255 Motion, he must obtain
certification from the appropriate Circuit Court of Appeals pursuant to 28 U.S.C. §
2244(b)(3).3 See In re Goddard, 170 F.3d 435, 436 (4th Cir. 1999) (“before a prisoner
3 Title 28, Section 2244(b)(3)(A) of the United States Code states that “[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the application.”
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can pursue a qualifying ‘second or successive’ § 2255 motion, he must obtain
authorization from the court of appeals.”); 28 U.S.C. § 2244(b)(3)(A).4 To obtain
certification from the Court of Appeals, Petitioner must demonstrate that the Motion
contains:
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255.
Accordingly, it is hereby ORDERED that Petitioner should inform the court in
writing by Friday, June 19, 2015, if he does not wish to have his Petition recharacterized as a motion under Section 2255. Should Petitioner not agree with the
undersigned that his Petition should be re-characterized as a Section 2255 Motion, the
undersigned will issue Proposed Findings of Fact and Recommendations on the Petition
as filed under Section 2241.
Should Petitioner not file a response to this Amended Order and Notice, the
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Title 28, Section 2244(b)(3) provides as follows:
(A) Before a second or successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district court to
consider the application.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or
successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines
that the application makes a prima facie showing that the application satisfies the requirements of this
subsection.
(D) The court of appeals shall grant or deny the authorization to file a second or successive application not
later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a court of appeals to file a second or successive application
shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.
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undersigned will consider the Petition to be filed under Section 2255 and shall
recommend transfer of the case to the United States District Court for the District of
Puerto Rico. In that event, Petitioner shall have the opportunity to withdraw the Petition
prior to transfer, or amend it to assert any other claims he believes he has under Section
2255.
The Clerk is directed to send a copy of this Order to Petitioner, who is acting pro
se.
ENTERED: May 7, 2015
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