Opinion
Case No. 18-cv-1453-SLD
11-18-2019
John A. MANDACINA, Petitioner, v. Steve KALLIS, Warden, Respondent.
Zachary Lee Newland, Brandon Sample, Brandon Sample PLC, Rutland VT, for Petitioner. Kimberly A. Klein, US Attorney, Peoria IL, for Respondent.
Zachary Lee Newland, Brandon Sample, Brandon Sample PLC, Rutland VT, for Petitioner.
Kimberly A. Klein, US Attorney, Peoria IL, for Respondent.
ORDER AND OPINION
Sara Darrow, Chief United States District Judge
Before the Court is Petitioner John A. Mandacina's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1). Mandacina alleges he has a meritorious Giglio claim that he could not have reasonably discovered prior to his initial motion under 28 U.S.C. § 2255. He argues this situation falls within the savings clause of 28 U.S.C. § 2255(e), allowing him attack his conviction under § 2241. For the reasons set forth below, the Court finds that Mandacina's claim does not fall with the savings clause and his Petition (Doc. 1) must be DISMISSED.
I. BACKGROUND
A. Factual Background of Mandacina's Conviction
In May 1993, in the District Court for the Western District of Missouri, Mandacina and his codefendant Patrick H. McGuire were charged with conspiring to retaliate against an informant, in violation of 18 U.S.C. § 371 ; retaliating against an informant, in violation of 18 U.S.C. § 1513(a) ; using interstate commerce in the commission of the retaliation, in violation of 18 U.S.C. § 1958 ; and using a firearm in the commission of the two substantive offenses, in violation of 18 U.S.C. § 924(c). See United States v. McGuire , 45 F.3d 1177, 1180 (8th Cir. 1995) ; United States v. McGuire , 4:93-cr-00073 (W.D. Mo.). "The charges arise from the murder of Larry Strada, a witness before the grand jury which indicted Mandacina for illegal gambling. The jury found that Mandacina agreed to pay McGuire $25,000 to murder Strada and that McGuire did so." McGuire , 45 F.3d at 1180.
In briefing, the parties both relied on the thorough factual summary recounted by the Eighth Circuit in Mandacina's direct appeal:
Larry Strada provided information to the FBI implicating Mandacina in bookmaking and other criminal activity in the Kansas City area. Mandacina later pled guilty to charges of conspiracy to conduct an illegal gambling business. On May 3, 1990, Mandacina was sentenced to twelve months imprisonment.
At approximately 2:00 a.m. on May 16, 1990, Larry Strada returned home from a bar he operated and was killed in front of his home while taking out the trash. He was shot six times in the head and twice in the chest. The gunman did not take Strada's jewelry, his wallet with approximately $200 in cash, or a bank bag with the bar's nightly receipts.
The Kansas City Area Metro Squad investigated Strada's murder for approximately one week before turning it over to the FBI and law enforcement authorities in Gladstone, Missouri. No one found a weapon, a witness, or a lead. In mid-December 1990, McGuire and his brother-in-law Terry Dodds were arrested while committing a bank robbery in Milwaukee, Wisconsin. Dodds pled guilty to bank robbery and firearm charges, and received a sentence of seven years, nine months. In early 1992, Dodds decided to cooperate with the federal authorities. FBI Agent Daniel Craft interviewed Dodds regarding a number of bank robberies. During this interview, Dodds implicated Thomas Earlywine as a participant in the robberies. Dodds also stated that he had overheard a conversation in which Mandacina said that he wanted somebody killed who had fingered him for a crime.
The FBI arrested and interviewed Earlywine about the robberies and the contract killing in Kansas City. Earlywine identified the victim of the contract killing as Lonnie or Larry Strada or Strocka. Earlywine told Agent Craft that, in May of 1990, a hitman murdered Strada while Strada was taking out his trash, and that Mandacina ordered the hit for $25,000.
Earlywine testified at trial that, in November 1989, Earlywine and Dodds went to the Red Front Restaurant and Lounge in the river market area of Kansas City. Both Earlywine and Dodds described a conversation in which Mandacina told McGuire that he had been indicted on federal gambling charges and that he thought that Strada had already fingered him or was preparing to do so. Mandacina then asked if McGuire would kill Strada.
Earlywine stated that McGuire bragged previously that he would do anything for Mandacina or members of Kansas City organized crime, including "heavy work," i.e. murder. McGuire told Earlywine that he wanted to ingratiate himself with the people he believed to be in "the outfit" or mafia in Kansas City.
Earlywine also testified that on another occasion, Mandacina mentioned the gambling indictment, but told McGuire and Earlywine that he did not want to talk further at the Red Front. He suggested that they go to his brother-in-law's restaurant, "Chubby's." Once there and while in Earlywine's presence, Mandacina said that he wanted Strada murdered and that he would pay McGuire $25,000 to do it. Mandacina also asked McGuire if he would murder Mandacina's son-in-law. McGuire said that he would and that it would be "gratis," or free.
In June 1990, McGuire met Earlywine at a bar in Rockford and told Earlywine that Strada had been murdered. McGuire said that Strada was murdered while taking out his trash and that he had deserved it. Earlywine did not ask McGuire if he killed Strada, because Earlywine believed that McGuire would have told him directly if McGuire wanted him to know.
In July 1990, Earlywine and McGuire came to Kansas City. McGuire called Frank Angotti and arranged to meet him for a drink at the Red Front. In an attempt to get Angotti to join their crime spree, McGuire told Angotti about the bank robberies in which Earlywine, Dodds and McGuire were involved and took him outside to show him a bag full of guns and a bag full of money. They then went back into the Red Front. Angotti testified to the following exchange, which occurred after Earlywine left the table:
I told Pat [McGuire], I said, "Pat, I have been hearing rumors about you." He said, "What kind of rumors?" I said, "Well, I hear that you did Larry. Did you do Larry?" He said yes.
At trial, Dodds and Earlywine testified regarding numerous robberies involving both of them and McGuire. They also testified regarding the necessity of obtaining weapons for this purpose. While drinking in Jennie's restaurant in downtown Kansas City, Earlywine and Dodds testified that McGuire asked the bartender where he could buy more guns. The bartender introduced McGuire to a woman at the bar, Brock Decastrogiovannimausolf, whose boyfriend owned a gun shop. The next day Brock introduced McGuire to the gun shop's owner, Dennis Crouch. At first Crouch refused to sell guns to McGuire, and McGuire enlisted John Mandacina to give assurances to Crouch for the sale, which was ultimately concluded.
McGuire , 45 F.3d at 1181–82. As Mandacina highlights, and as is relevant to his current claim, the prosecution relied, in part, on the testimony of Agent Daniel Craft to proof its case. Agent Craft was one of the key FBI Agents who conducted the initial interviews of Dobbs and Earlywine. According to Mandacina's brief, the prosecution, in his closing argument at trial, told the jury that "[i]f you think Earlywine is lying, if you want to believe that, then you have to believe that Special Agent Craft fed him all this stuff...." Pet. at 10 (Doc. 1). The prosecution also told the jury "[t]here is some dispute, and I am not sure we will ever get to the bottom of it, about whether Dodds gave Special Agent Craft the name Larry Strada during that first interview." Id. Accordingly, Agent Craft's testimony and reliability was, at a minimum, at issue at the trial.
B. Evidence of Agent Craft's Previous Misconduct
Unbeknownst to Mandacina at the time of trial and until after his initial motion under 28 U.S.C. § 2255 was denied, Agent Craft had engaged in previous misconduct. In 1983, Agent Craft had "conspired to falsify the results of a polygraph examination" that he had administered. (R. 1688). As summarized in a letter by FBI officials disciplining Craft:
The results of the tests in which [Craft] contrived to circumvent established Bureau procedures could have caused damage to this vital program. [Craft's] conduct in this matter undercut the integrity of the polygraph process and cannot be condoned. [Craft's] attempt to cover up an employee's mis-representations, if undetected, would have usurped the authority and responsibility of the Director to deal fairly and impartially with matters of internal misconduct.
Pet. App. at R. 1689 (Doc. 1-7 at 89).
Additionally, Agent Craft mishandled memos called "302" reports regarding eyewitness photo identifications in a federal bank robbery case, which lead to the wrongful convictions of Frank Bolduc and Francis Larkin. See Bolduc v. United States , 402 F.3d 50, 52 (1st Cir. 2005). In the 302 reports eyewitnesses had identified other individuals as the perpetrators, but the 302 reports were not placed in the investigation file, were not turned over to the U.S. Attorney's Office, and were not made available to the defendants. Id. The memos later were discovered when the true bank robbers confessed to the crimes.
Mandacina also points the Court to misconduct of Agent Craft that occurred after Mandacina's trial. See United States v. Acosta , 111 F. Supp. 2d 1082, 1088 (E.D. Wis. 2000) (recounting misconduct of Agent Craft in Minnesota involving failure to heed a request for counsel).
C. Procedural History of Mandacina's Post-Conviction Relief Attempts.
Mandacina and his co-defendant were found guilty on all counts. The district court sentenced Mandacina to life imprisonment, and the Eighth Circuit affirmed his conviction and sentence in January 1995. McGuire , 45 F.3d at 1190. Mandacina filed a Motion to Set Aside, Vacate, or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging various Brady and ineffective assistance of counsel claims. See Mandacina v. United States , 4:97-cv-00572-HFS (W.D. Mo.). His claims were dismissed, with the exception of his claim of newly discovered evidence regarding footprint evidence at the murder scene. Mandacina v. United States , 328 F.3d 995, 997 (8th Cir. 2003). On September 27, 2000, Mandacina requested leave to supplemental his § 2255 motion. Id. After discovery, the district court denied leave to supplement his claims, finding his additional claims untimely, and denied the footprint evidence claim on the merits. Id.
Mandacina appealed to the Eighth Circuit. While his appeal was pending, but after briefing was complete, Mandacina moved to add the claim he seeks to bring now—that the Government withheld the impeachment material regarding Agent Craft's misconduct in other unrelated cases. The Eighth Circuit stated that "we reject Mandacina's arguments that his remaining supplemental claims, including the St. John evidence, are timely filed under section 2255 [(f)](2) and (4) or that the claims relate back to the original motion." Mandacina , 328 F.3d at 1002. However, the opinion as a whole does not mention his motion to supplement the record or his Giglio claim, so it seems unlikely that this language was meant to address his Giglio claims. Instead, it appears that the Eighth Circuit did not address the motion to supplement with the Giglio claim at all.
Mandacina sought leave to file a second or successive § 2255 motion with the Eighth Circuit, again raising his claim that the Government violated Giglio by failing to turn over material evidence about Agent Craft's prior misconduct. Mandacina v. United States , No. 05-2186 (8th Cir. 2005). The Government opposed, arguing that the evidence could not meet the requirements of § 2255(h)(1) because it was not "newly discovered" and it was only impeaching, therefore, it could not meet the requirement that the evidence "be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." See 28 U.S.C. § 2255(h)(1). The Eighth Circuit denied the request without a detailed explanation on June 8, 2005.
On December 24, 2018, Mandacina filed the instant petition (Doc. 1) pursuant to 28 U.S.C. § 2241. He alleges he is entitled to relief pursuant to Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), due to the Government's failure to turn over the impeachment evidence regarding Agent Craft. Moreover, he argues that he is entitled to attack his conviction under § 2241 because of a structural problem with § 2255 that makes relief under § 2255 "inadequate or ineffective to test the legality of his detention." The Government filed a response on February 25, 2019, and Mandacina filed a reply on April 1, 2019. This Order follows.
II. DISCUSSION
Mandacina seeks to bring a § 2241 claim attacking his conviction based on Giglio v. United States , 405 U.S. 150, 92 S. Ct. 763, 31 L.Ed.2d 104 (1972). In Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that suppression of evidence that is material to either guilt or punishment justifies a new trial "irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. In Giglio , the Supreme Court clarified that, where the reliability of a witnesses may be determinative of guilt or innocence, failure to disclose evidence affecting credibility falls within this general rule. 405 U.S. at 153, 92 S.Ct. 763. To bring a successful Giglio claim, a petitioner need only prove that the evidence withheld was "material," such that there is a "reasonable likelihood" that the withheld evidence could have affected the judgment of the jury. Id. Mandacina argues his Giglio claim meets this standard and entitles him to a new trial or release.
Generally, federal prisoners who seek to collaterally attack their conviction or sentence must proceed by way of motion under 28 U.S.C. § 2255, the so-called "federal prisoner's substitute for habeas corpus." Camacho v. English , 872 F.3d 811, 813 (7th Cir. 2017) (quoting Brown v. Rios , 696 F.3d 638, 640 (7th Cir. 2012) ). While a Giglio claim can proceed in an initial § 2255 motion, Giglio claims brought in a second or successive § 2255 motion can only proceed if they meet the heightened gatekeeping requirements the Antiterrorism and Effective Death Penalty Act ("AEDPA") put on successive motions. Section 2255(h) provides that a second or successive motion must contain:
(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(h). A claim based on Giglio does not rely on a new rule of constitutional law, so would not fall under § 2255(h)(2). Moreover, a Giglio claim based on newly discovered evidence that meets the materiality standard for a Giglio claim—that there is a "reasonable likelihood" that the withheld evidence could have affected the judgment of the jury—only meets the gatekeeping requirements if it can also meet the heightened standard that, in light of the evidence as a whole, there is "clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." 28 U.S.C. § 2255(h)(1).
Some petitioners in recent years have attempted get around the gatekeeping provisions for second or successive petitions by arguing that a Giglio or Brady claim based on evidence that could not have been discovered earlier with due diligence does not qualify as a "second or successive" motion. This argument draws support from Panetti v. Quatrerman , 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), which held that a Ford -based claim of incompetency to be executed was not barred as a second or successive petition since the factual predicate for the claim was not ripe until the petitioner's date of execution was set. However, all courts of appeals to have addressed such claims have held that second-in-time § 2255 motions raising Giglio and Brady claims based on newly discovered evidence are second or successive motions, as "the violation occurs at the time the [prosecution] should have disclosed the exculpatory evidence—i.e. before trial." Brown v. Muniz , 889 F.3d 661, 672–73 (9th Cir. 2018) (noting that its finding aligned with the Fourth, Tenth and Eleventh Circuits). See also, Scott v. United States , 890 F.3d 1239, 1243 (11th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 842, 202 L. Ed. 2d 631 (2019) (holding claim qualified as second or successive under application of past circuit precedent, but expressing doubt that it was the correct decision and concern that such a result could qualify as a suspension of the writ of habeas corpus); Baranski v. United States , 880 F.3d 951, 958 (8th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 266, 202 L. Ed. 2d 134 (2018) ; Evans v. Smith , 220 F.3d 306, 323 (4th Cir. 2000) ("[T]he standards that Congress has established for the filing of second or successive petitions account for precisely the type of situation Evans alleges"— Brady claims). At this point, of course, a contrary holding would not help Mandacina—even if his claim was not subject to the second or successive gatekeeping requirements, it is no longer timely under § 2255.
Here, Mandacina seeks to get around the gatekeeping requirements in another way—he argues he should be able to proceed under the so-called "savings-clause" of § 2255(e). Under the savings clause a federal prisoner may petition under § 2241 if the remedy under § 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). The Seventh Circuit has previously stated that under the "escape hatch" of § 2255(e), "[a] federal prisoner should be permitted to seek habeas corpus only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion." In re Davenport , 147 F.3d 605, 611 (7th Cir. 1998). Since Davenport , the Seventh Circuit has generally applied some version of the following test: "[t]o pursue relief under § 2241, a petitioner must establish that ‘(1) the claim relies on a statutory interpretation case, not a constitutional case, and thus could not have been invoked by a successive § 2255 motion; (2) the petitioner could not have invoked the decision in his first § 2255 motion and the decision applies retroactively; and (3) the error is grave enough to be deemed a miscarriage of justice.’ " Chazen v. Marske , 938 F.3d 851, 856 (7th Cir. 2019) (citing Beason v. Marske , 926 F.3d 932, 935 (7th Cir. 2019) ).
However, Mandacina does not argue his claim could meet the Davenport test. Rather, he argues that this test does not describe the only circumstances that justify relief under the savings-clause. As Mandacina points out, the Seventh Circuit, in Webster v. Daniels , 784 F.3d 1123 (7th Cir. 2015) (en banc), has also allowed a different type of claim to proceed under § 2241 pursuant to the savings clause. In Webster , the Seventh Circuit held "that there is no categorical bar against resort to section 2241 in cases where new evidence would reveal that the Constitution categorically prohibits a certain penalty." Id. at 1139. Such cases could not proceed under § 2255(h)(1), because the new evidence only proved innocence of the sentence, but not the offense. Id. The Webster holding relied on the statutory language as well as the fact that the Supreme Court had not yet decided the cases of Atkins and Roper , which created circumstances of constitutional ineligibility for a sentence, at the time AEDPA was passed. Id. The Seventh Circuit noted that "a core purpose of habeas corpus is to prevent a custodian from inflicting an unconstitutional sentence." Id. The Seventh Circuit also noted that "[i]t will be a rare case where records that predate the trial are found much later, despite diligence on the part of the defense, and where those records bear directly on the constitutionality of the death sentence." Id. at 1140.
Mandacina argues a Giglio claim based on evidence that could only reasonably be discovered after a petitioner's initial § 2255 motion is decided, is another type of claim that falls under the savings clause. As an initial matter, the Government argues that Mandacina does not have such a claim, because his claim could have been reasonably discovered during the pendency of his initial § 2255 motion. This is because the Acosta case, addressing later misconduct of Agent Craft, was first published on August 26, 2000, and was released again after being amended on October 2, 2000. Resp. at 12 (Doc. 6); Acosta , 111 F. Supp. 2d at 1088-89. Mandacina argues that he could not have raised his Giglio claim in August 26, 2000, because it would have been deemed untimely. This is incorrect if Mandacina's evidence was newly discovered. Newly discovered evidence would have been independently timely under § 2255(f)(4) —which provides a one year time limitation from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." However, while the Acosta case might have implied that other evidence existed that could have been used as impeachment evidence in Mandacina's case, the misconduct addressed in Acosta itself could not have been the basis for a Giglio claim as the Acosta misconduct occurred in 1999, after Mandacina's trial. Acosta , 111 F. Supp. 2d at 1088-89. Accordingly, the Court finds it questionable whether the publication of this case alone provided Mandacina with sufficient notice that he may have a Giglio claim. And Respondent has not argued that the alleged misconduct from the Bolduc case or the 1983 misconduct on the polygraph examination was reasonably available before the district court denied Mandacina's initial § 2255 motion.
Alternatively, it is possible that the Eight Circuit's language in Mandacina's appeal of his initial § 2255 motion, finding his supplemental claims untimely under § 2255(f)(2) and (4), applied to the Giglio claim regarding Agent Craft as well, and the Eighth Circuit found that he could have brought the claims earlier. Mandacina , 328 F.3d at 1002 ("[W]e reject Mandacina's arguments that his remaining supplemental claims, including the St. John evidence, are timely filed under section 2255 [(f)](2) and (4) or that the claims relate back to the original motion."). If that is the case, then there was no structural problem with § 2255 that foreclosed his claim. Mandacina may believe that the Eighth Circuit's decision was wrong, but his remedy was to appeal. See Taylor v. Gilkey , 314 F.3d 832, 835 (7th Cir. 2002) (stating that the language "to test the legality" of the detention "implies a focus on procedures rather than outcomes. Judges sometimes err, but this does not show that the procedures are inadequate; it only shows that people are fallible."). As noted above though, it seems unlikely that the Eighth Circuit addressed these claims in Mandacina's appeal of his § 2255 motion.
However, assuming Mandacina's claim could not have been discovered in time for adjudication in his initial § 2255 motion and the issue was not previously addressed by the Eighth Circuit, the Court still finds Mandacina's claim cannot proceeded under the savings clause. Mandacina argues that his claim must be able to proceed under the savings clause because a Giglio claim can never meet the requirements of § 2255(h)(1) because such evidence is impeaching only. Mandacina also argues that there would be a "host of problems" if a later discovered Giglio claim was not allowed to proceed under § 2255(e). First, such a rule might "incentivize governmental misconduct through the withholding of Giglio material until after § 2255 relief has been denied, thereby allowing the error to escape judicial review." Pet. at 18 (Doc. 1). Second, Mandacina argues that a contrary holding would amount to an unlawful suspension of the writ of habeas corpus. Id.
Notably, the Eleventh Circuit in Scott v. United States , 890 F.3d 1239 (11th Cir. 2018), expressed similar concerns. The Eleventh Circuit in Scott found it was bound by circuit precedent to hold that a later-discovered Brady / Giglio claim was a second or successive motion, but the panel believed that the result was incorrect. As the Eleventh Circuit noted in dicta, the finality concerns that led to the enactment of AEDPA are not the same with regard to Brady / Giglio claims:
[T]he government cannot be heard to complain of trial prejudice from a new trial necessitated by its own late disclosure of a Brady violation, since it is solely responsible for inflicting any such prejudice on itself in such circumstances. Whatever finality interest Congress intended for AEDPA to promote, surely it did not aim to encourage prosecutors to withhold constitutionally required evidentiary disclosures long enough that verdicts obtained as a result of government misconduct would be insulated from correction.
Scott , 890 F.3d at 1252. The Eleventh Circuit also found there could be constitutional concerns: "the Constitution guarantees criminal defendants a fair trial.... So imprisoning someone based on the results of an unfair trial and then precluding any remedy at all might well work a suspension of the writ of habeas corpus." Scott , 890 F.3d at 1251 (internal citations omitted). And, the Supreme Court has clearly held that where there was a Giglio violation, there has not been a fair trial.
While these concerns cannot be ignored, the Court finds that the statutory language, as well as Seventh Circuit precedent preclude such a reading of the savings clause. Unlike the type of claim at issue in Webster , new evidence that revealed a punishment was constitutionally prohibited, a Giglio claim falls squarely within the type of claims § 2255(h)(1) intended to limit. While § 2255(h)(1) does not allow any claims that a person is constitutionally innocent of the type of punishment, § 2255(h)(1) would allow a Giglio claim that meet the heightened "clear and convincing" standard. Mandacina argues no Giglio claim could meet this heightened standard, but the Court disagrees. There could be a case where later-discovered evidence showed that a material prosecution witness was clearly lying—which if the prosecution had little or no other evidence of guilt could amount to "clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense."
Moreover, in Webster , the Court found that the issue was open "both from the standpoint of legislative history and that of Supreme Court rulings" because:
The problem before us, quite simply, is not one that Congress could have contemplated. At the time AEDPA was under consideration, the Supreme Court had not yet held it unconstitutional to execute either an intellectually disabled person (Atkins ) or a minor ( Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ).
Webster , 784 F.3d at 1138. The same cannot be said of Giglio claims, of which Congress was aware at the time it wrote the statute. It can be assumed that Congress took such claims into account when writing the statute and that Congress found that later-discovered Giglio claims were not the type that deserved a second "bite at the apple." See In re Davenport , 147 F.3d 605, 610 (7th Cir. 1998). In short, the Court finds that later-discovered Giglio claims are exactly the type of cases Congress meant to restrict under § 2255(h)(1) when it passed AEDPA.
Moreover, in allowing petitions to proceed under § 2255(e), the Seventh Circuit has demanded a showing of both "a structural problem in § 2255 forecloses even one round of effective collateral review" as well as "the claim being foreclosed is one of actual innocence." Taylor v. Gilkey , 314 F.3d 832, 835 (7th Cir. 2002). The Seventh Circuit's definition of actual innocence in this context includes both innocence of the crime and the sentence (and the sentencing enhancement), see, e.g., Brown v. Caraway , 719 F.3d 583, 587-88 (7th Cir. 2013), but, regardless, requires some showing of innocence. This additional requirement is crucial, as otherwise any claim that is barred by § 2255(h) would fit within the savings clause. See Garza v. Lappin , 253 F.3d 918, 922 (7th Cir. 2001) (noting "[t]he fact that the motion would be barred as a successive petition under § 2255 ... is not enough to bring the petition under § 2255's savings clause; otherwise, the careful structure Congress has created to avoid repetitive filings would mean little or nothing"); Hicks v. Krueger , No. 14-1458, 2015 WL 13048444, at *1 (C.D. Ill. June 8, 2015) ("[T]his Court cannot believe that the Court of Appeals intended their decisions to utterly eviscerate the procedural limitations on successive § 2255 motions or grossly expand the limited scope of § 2241 to eliminate any need to demonstrate actual innocence of either the crime or the sentence enhancement."). Here, Mandacina concedes that his claim falls short of a showing of actual innocence. Moreover, if it did, it would not have been barred under § 2255(h)(1) anyway.
Furthermore, the Court does not find that this result is a violation of the Suspension Clause, Art. I, § 9, cl. 2 of the Constitution. As noted by the dissent in Webster , the Seventh Circuit has long "held that the Suspension Clause protects only the ‘Great Writ’—that is, the writ used to contest pretrial detention by the Executive Branch. Collateral review following conviction by a court of competent jurisdiction did not exist until the Twentieth Century, and we held that Congress is free to limit the extent to which federal courts can provide post-conviction collateral remedies." Webster , 784 F.3d at 1153 (J. Easterbrook, dissenting) (citing Lindh v. Murphy , 96 F.3d 856, 867–68 (7th Cir. 1996) (en banc), reversed on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) ). Moreover, shortly after the enactment of AEDPA, the Supreme Court found that the added restrictions are not generally constitutionally problematic: "The added restrictions which the Act places on second habeas petitions are well within the compass of [the] evolutionary process [of abuse of the writ law], and we hold that they do not amount to a "suspension" of the writ contrary to Article I, § 9." Felker v. Turpin , 518 U.S. 651, 664, 116 S. Ct. 2333, 2340, 135 L.Ed.2d 827 (1996). Importantly, Felker also highlighted "that judgments about the proper scope of the writ are ‘normally for Congress to make." Id. at 664, 116 S. Ct. 2333, 2340 (citing Lonchar v. Thomas , 517 U.S. 314, 323, 116 S. Ct. 1293, 1298, 134 L.Ed.2d 440 (1996) ).
While a petitioner with a meritorious Giglio claim would, by definition, have had an unfair trial—and whether Mandacina's Giglio claim is meritorious is questionable, but is an issue the Court declines to reach—that alone does not mean that a petitioner is still entitled to relief on his claim years after the alleged Giglio violation occurred. And, Congress is free to limit the availability of such relief. Further, the Court finds that to the extent to which this holding might "incentivize governmental misconduct through the withholding of Giglio material until after § 2255 relief has been denied" the risk is not demonstrated by this case. Accordingly, the Court finds that Mandacina's petition cannot proceed under § 2255(e), and must, therefore, be dismissed.
III. CONCLUSION
For the reasons set forth above, Petitioner John A. Mandacina's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) is DISMISSED pursuant to 28 U.S.C. § 2255(e).