Opinion
C/A 9:21-01787-JMC-MHC
10-26-2021
Luis A. Serrano, Jr., Petitioner, v. Warden of FCI Bennettsville, Respondent.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
The pro se Petitioner, Luis A. Serrano, Jr., a federal inmate at FCI-Bennettsville, brings this action as an application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. In an Order entered July 30, 2021, Petitioner was warned of pleading deficiencies in his Petition and given an opportunity to file an amended petition. ECF No. 6. Petitioner has not filed an amended petition.
I. BACKGROUND
Petitioner asserts “Denial of [28 U.S.C. §] 2255 Motion” as his sole ground for relief in this § 2241 Petition. Petition, ECF No. 1 at 6. Specifically, he writes:
The Courts denied the 2255 Motion due to being filed untimely. The Courts stated the judgment of conviction became final on January 16, 2015 which is wrong. Judgment of conviction became final on May 26, 2015. Therefore [Petitioner] has/had one year from May 26, 2015 to file a 2255 Motion. [Petitioner's] 2255 Motion was filed on April 14, 2016 which is within the one year allowed.
ECF No. 1 at 7 (errors in original). With his Petition, Petitioner submitted (1) the first page of an order from the sentencing court (the District Court for the Eastern District of Pennsylvania) dated March 18, 2016, that denied Petitioner's request for appointment of a federal public defender to assist him in the preparation of a motion under 28 U.S.C. § 2255 and advised Petitioner of the applicable filing deadline for a § 2255 motion; (2) an order from the sentencing court dated June 21, 2017, that denied Petitioner's request for appointment of counsel and his request for an extension of time to amend his § 2255 motion because his § 2255 motion had already been denied on May 24, 2016; and (3) a letter from Petitioner's trial attorney dated May 29, 2015, advising Petitioner of the deadline to file a motion under § 2255. ECF No. 1-1 at 1-3.
On August 23, 2012, Petitioner was charged by indictment with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). He entered a guilty plea on December 9, 2013. Petitioner had three prior Pennsylvania convictions for drug trafficking offenses and thus was subject to sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On June 5, 2014, Petitioner was sentenced to 180 months' imprisonment, the mandatory minimum under the ACCA. See Serrano v. Ortiz, No. CV 19-15036 (RMB), 2020 WL 6689987, at *1 (D.N.J. Nov. 13, 2020). On January 16, 2015, the Court of Appeals for the Third Circuit affirmed Petitioner's conviction and sentence. United States v. Serrano, 598 Fed.Appx. 72 (3d Cir. 2015), cert. denied, 575 U.S. 1032, (2015).
On April 14, 2016, Petitioner filed a motion in the sentencing court pursuant to § 2255 to vacate, set aside, or correct sentence, and the government responded that the motion should be denied because Petitioner failed to allege a claim entitling him to relief. United States v. Serrano, No. 2:12-cr-00452-JD, Documents 79 and 81. Petitioner asserted that his guilty plea was invalid because his attorney, at the time the plea agreement was executed and entered, failed to explain the scope of the collateral-review waiver. On May 25, 2016, the sentencing court denied the § 2255 motion, stating:
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings).
As noted by the sentencing court:
The Guilty Plea Agreement included a partial waiver of Serrano's right to seek collateral review. In the Plea Agreement Serrano agreed to waive “all rights” to. collaterally attack “any . . . matter relating to this prosecution, ” subject to one exception: he may “raise a claim [under § 2255] that the attorney who represented [him] at the time of the execution of this agreement and the entry of the defendant's guilty plea provided constitutionally ineffective assistance during any part of the representation.”United States v. Serrano, No. 2:12-cr-00452-JD, Document 83 at 1-2.
The record as a whole demonstrates that Serrano understood the scope of the collateral-review waiver. See United States v. Sabater, 270 Fed.Appx. 219, 221, n. 1 (3d Cir. 2008); United States v. Yasin, No. 11-cv-3344, 2013 WL 3199676, at *4 (E.D. Pa. June 24, 2013) (“[E]ven if his counsel did not specifically explain the waiver to him, . . . the waiver was knowing and voluntary.”). “[G]iven the discussion of the waiver provision” at the change of plea hearing, Serrano “has not demonstrated a reasonable probability that, but for counsel's explanation of the waiver provision, he would have proceeded to trial rather than pleading guilty[.]” United States v. Garcia, No. 12-cv-5046, 2015 WL 115475, at *2 (E.D. Pa. Jan. 6, 2015) (internal citations omitted).United States v. Serrano, No. 2:12-cr-00452-JD, Doc. 83 at 3-4. On July 25, 2017, Petitioner filed a notice of appeal as to the § 2255 motion, and on November 28, 2017, the Third Circuit denied the appeal for lack of appellate jurisdiction because Petitioner failed to timely file his notice of appeal. See id., Documents 89 (Notice of Appeal) and 91 (Mandate).
On July 11, 2019, while confined at FCI-Fort Dix in New Jersey, Petitioner filed a § 2241 petition in which he asserted that he was actually innocent of the crime of conviction under 18 U.S.C. § 922(g) pursuant to the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). The District Court for the District of New Jersey denied the § 2241 petition on November 13, 2020. See Serrano v. Ortiz, 2020 WL 6689987, at *1 and *3.
II. STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Ant-
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b) of Rules Governing Section 2254 Cases in the United States District Courts (the district court may apply any or all of these rules to a habeas corpus petition not filed pursuant to 28 U.S.C. § 2254).
Terrorism and Effective Death Penalty Act (AEDPA) of 1996; and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995); and Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983). A federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, even when considered under this less stringent standard, for the reasons set forth below, the Petition submitted in this case is subject to summary dismissal.
III. DISCUSSION
It is recommended that this Petition be dismissed because this Court lacks jurisdiction over the § 2241 Petition. Congress requires every federal prisoner who collaterally attacks his conviction to employ the motion mechanism provided in 28 U.S.C. § 2255. However, there is one exception-if § 2255 appears “inadequate or ineffective, ” then § 2255(e) provides that a federal prisoner may apply for a writ of habeas corpus under § 2241. Farkas v. Butner, 972 F.3d 548, 550 (4th Cir. 2020). This mechanism has been referred to as the “savings clause” exception. Id.
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, a petitioner must meet the savings clause test as contemplated in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (challenges to convictions) or United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (challenges to sentences). Significantly, the savings clause is a “jurisdictional provision.” Wheeler, 886 F.3d at 423. Thus, if a petitioner cannot meet one of the Jones or Wheeler requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
To demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a conviction, a petitioner must show that:
(1) at the time of the 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. Here, Petitioner has not alleged that he has met all three prongs of the test set out in Jones.
To demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a sentence, a petitioner must show that:
at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.Wheeler, 886 F.3d at 429. Here, to the extent that Petitioner may be attempting to test the legality of his sentence, he has not alleged that he has met all four prongs of the test set out in Wheeler.
Petitioner appears to be attempting to appeal his § 2255 motion through his § 2241 Petition, which he may not do. See, e.g. Deonn-Hellems v. USA, No. 19-CV-000439-NJR, 2019 WL 2601694, at *2 (S.D. Ill. June 25, 2019) (A petitioner “cannot use Section 2241 to appeal the denial of a Section 2255 motion.”). The fact that a previous § 2255 motion was denied does not entitle Petitioner to challenge his sentence under § 2241. See In re Jones, 226 F.3d at 333 (noting that a motion is not “inadequate or ineffective merely because an individual is unable to obtain relief under that provision, ” as “[a] contrary ruling would effectively nullify the gatekeeping provisions”).
Thus, this action is subject to summary dismissal for lack of jurisdiction because Petitioner fails to satisfy the savings clause in 28 U.S.C. § 2255(e) pursuant to the tests articulated in Jones and Wheeler. See Habeck v. United States, 741 Fed.Appx. 953, 954 (4th Cir. 2018) (“The requirements of the § 2255(e) savings clause are jurisdictional.”); Rice v. Riviera, 617 F.3d at 807 (“[T]he district court lacked jurisdiction over the [h]abeas [petition] because Rice is unable to satisfy the second prong of the Jones rule.”). As noted above, Petitioner previously filed a § 2255 motion. To the extent Petitioner is attempting to file another § 2255 motion, his potential remedy may be to seek permission from the United States Court of Appeals for the Third Circuit Court to file a successive § 2255 petition in the District Court for the Eastern District of Pennsylvania, in which he was sentenced.
Even if Petitioner could establish that this Court has jurisdiction, Petitioner has presented no facts to show that the sentencing court denied his § 2255 motion as untimely. As noted above, the sentencing court denied Petitioner's § 2255 motion for other reasons (not for being untimely). See United States v. Serrano, No. 2:12-cr-00452-JD, Doc. 83 at 2-4. Although Petitioner appears to argue that the sentencing court's March 2016 order informed him of an erroneous deadline to file his § 2255 motion, it appears he timely filed his motion. Additionally, the sentencing court on April 4, 2016 (prior to alleged incorrect deadline and prior to Petitioner filing his § 2255 motion), corrected any error by amending its March 18, 2016 order:
to recite that pro se defendant filed a Petition for Writ of Certiorari to the United States Supreme Court, which was denied on May 26, 2015, and that pro se defendant has one (1) year from May 26, 2015, by which to file a motion under 28 U.S.C. § 2255.United States v. Serrano, Document 77 (emphasis added). Finally, the Third Circuit denied Petitioner's appeal based on a lack of appellate jurisdiction because Petitioner filed his appeal too late, and not based on the time the § 2255 motion was initially filed. See id, Document 91.
C. RECOMMENDATION
Accordingly, it is RECOMMENDED that the Petition in this action be DISMISSED without prejudice, without leave to amend, and without requiring Respondent to file a return.
In the Order entered July 30, 2021, Petitioner was specifically warned that if he failed to file an amended petition or failed to cure the deficiencies identified, it would be recommended that the Petition be dismissed without leave for further amendment. ECF No. 6; see Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020).
Petitioner's attention is directed to the important notice on the next page.
September 13, 2021 Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).