2005 | Cited 0 times | D. Maine | May 11, 2005


James Riggs has filed a motion to vacate his sentence pursuantto 28 U.S.C. § 2241. Riggs relies on Booker v. United States,___ U.S. ___, 125 S. Ct. 738 (Jan. 12, 2005) in his single § 2241ground. The United States has filed a motion to dismiss arguingthat the 28 U.S.C. § 2241 motion runs afoul of the28 U.S.C. § 2255 statute of limitation, that the § 2241 petition is notproperly brought in the District of Maine, and that the Bookerdecision is not retroactive to cases on collateralreview.1 I conclude that under First Circuit precedentthis Court can (most likely) make the determination of whether ornot Riggs's petition meets the criteria of the § 2255 ¶ 5 savingsclause and I recommend that the Court grant the Government'smotion to dismiss because Riggs cannot seek Booker relief byfiling a § 2241 petition that attempts to invoke the § 2255savings clause.2 Procedural Background

On April 23, 2004, Riggs filed a motion to vacate, set aside,or correct his sentence pursuant to 28 U.S.C. § 2255. The UnitedStates moved to dismiss that motion. On July 12, 2004, Riggssought to withdraw his § 2255 petition without prejudice. TheUnited States, in its response to that motion, pointed out that aone-year limitation exists with respect to petitions forpost-conviction relief under 28 U.S.C. § 2255 and explained thatbecause a writ of certiorari was denied by the Supreme Court ofthe United States in January 2004, Riggs had until January 2005to file another § 2255 petition. In a supplemental pleading datedJuly 22, 2004, Riggs invoked Blakely v. Washington,___ U.S. ___, 124 S. Ct. 2531 (2004), one of Booker's precursors, and ina supplemental response the United States argued that theBlakely claim was procedurally defaulted and in any event,Blakely did not apply retroactively to cases on collateralchallenge. In due course I issued a decision recommending thatRiggs's motion to dismiss without prejudice be granted, butadvising him of the one-year limitation for filing a § 2255petition explaining that the United States has made it clear thatit is not waiving its right to assert a statute of limitationsdefense. That recommended decision was affirmed.

On February 3, 2005, this pleading, entitled "Form for Use inApplications for Habeas Corpus Under 28 U.S.C. Section 2241" wasfiled in the District of Maine. It is captioned, "United StatesDistrict Court for the Northern District of New York" and liststhe respondent as D.B. Drew, Warden FCI Raybrook, and identifiedhis place of confinement as FCI Raybrook. Discussion

First, given Riggs's decision to voluntarily dismiss his28 U.S.C. § 2255 motion, it is clear to me that Riggs does notintend this present pleading as a traditional motion under §2255. Accordingly, this is not a petition that requiresconsideration of recharacterizing the motion as one properlybrought under § 2255 and proceeding with notification ofrecharacterization as required by Castro v. United States,540 U.S. 375, 381-84 (2003).

Venue for this 28 U.S.C. § 2241 Petition and the Viability ofa § 2241 Booker Challenge

In the order to answer directed to the United States Iexpressly asked for the answer to include a response to thecharacterization of this petition as one brought pursuant to the"savings clause" jurisprudence of § 2255/§ 2241. The UnitedStates' memorandum addressed this concern thusly: A second reason to dismiss this most recent pleading summarily is because it was filed in the wrong district court. In petitioning for relief, Riggs filed a printed form petition that invokes 28 U.S.C. § 2241 and is captioned in the United States District Court for the Northern District of New York. However, § 2241 petitions should not be brought in the district where sentence was imposed. Instead, they are properly filed in the district of confinement. See Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977).(Mot. Summ. Dismissal at 6.)

In Miller the First Circuit opined vis-á-vis a § 2241petition raising challenges to the propriety of a federalconviction: Miller's habeas petition should have been treated as a motion to vacate, pursuant to § 2255. Moran v. Hogan, 494 F.2d 1220 (1st Cir. 1974). See United States v. Tindle, 173 U.S.App.D.C. 77, 522 F.2d 689 (1975). Pro se petitions should be read liberally. McNair v. McCune, 527 F.2d 874 (4th Cir. 1975). The district court, which was the sentencing court, would have had no jurisdiction over a true § 2241 motion by Miller. Section 2241 provides a remedy for a federal prisoner who contests the conditions of his confinement; that motion must ordinarily be filed and heard by the district court in whose jurisdiction the petitioner is confined. 28 U.S.C. § 2241(a); Ahrens v. Clark, 335 U.S. 188 (1948); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). The sentencing court is the designated forum for challenges to the validity of a federal prisoner's conviction or sentence, which are motions authorized by 28 U.S.C. § 2255. United States v. DiRusso, 535 F.2d 673 (1st Cir. 1976). See generally, 2 C. Wright, Federal Practice and Procedure, ss 589-93 (1969). But, since § 2241 and § 2255 were designated to be coextensive in all but venue, Allison v. Blackledge, 431 U.S. 63, 75 n. 8 (1977); Hill v. United States, 368 U.S. 424, 427 (1961), this court is free to treat the lower court's disposition as if it were made under § 2255.564 F.2d at 105; see also United States v.Palmer-Contreras, 187 F.3d 624, 1998 WL 1085786, *1 (1st Cir.1998) (unpublished opinion) ("Finally, § 2241 is not available toappellant in this case because he is not contesting theconditions of his confinement. See Miller v. United States,564 F.2d 103, 105 (1st Cir. 1977)."). Castro now makes it clearthat courts are not as free as Miller suggests to unilaterallyrecharacterize a prisoner's filings.

Since Miller and the post-Miller enactment of theAntiterrorism and Effective Death Penalty Act (AEDPA) in 1996,the First Circuit in United States v. Barrett undertook athoroughgoing inquiry into the question of whether a prisonerseeking collateral relief from his conviction "may use § 2241 or§ 1651 to bring a claim that would otherwise be barred under §2255 and 28 U.S.C. § 2244." 178 F.3d 34, 38 (1st Cir. 1999). ThePanel concluded that "while there are very rare circumstances inwhich review may exist even if the requirements of § 2255 havenot been met," Barrett's case "present[ed] none of thosecircumstances." Id.

Barrett had indicated that his motion/petition was broughtpursuant to 28 U.S.C. § 1651, § 2241, § 2255, and Article I,section 9, clause 2 of the United States Constitution. After concluding that as a § 2255 motion it was a"second and successive," and rejecting Barrett's argument thatthe AEDPA restrictions should not be applied retroactively, id.at 42-49, the Panel turned to Barrett's "argument that thesavings clause of § 2255 permits him to proceed under § 2241 as ameans of seeking relief," id. at 49.

The Panel discussed the nature of a claim that would qualifyunder § 2255's "inadequate or ineffective to test the legality ofhis detention" clause. The Panel explained: A petition under § 2255 cannot become "inadequate or ineffective," thus permitting the use of § 2241, merely because a petitioner cannot meet the AEDPA "second or successive" requirements. Such a result would make Congress's AEDPA amendment of § 2255 a meaningless gesture. See, e.g., In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) ("Congress did not change [the `inadequate or ineffective'] language when in the Antiterrorism Act it imposed limitations on the filing of successive 2255 motions. The retention of the old language opens the way to the argument that when the new limitations prevent the prisoner from obtaining relief under 2255, his remedy under that section is inadequate and he may turn to 2241. That can't be right; it would nullify the limitations."); Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997) ("If it were the case that any prisoner who is prevented from bringing a § 2255 petition could, without more, establish that § 2255 is `inadequate or ineffective,' . . . then Congress would have accomplished nothing at all in its attempts — through statutes like the AEDPA — to place limits on federal collateral review."); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (stating that inadequacy or ineffectiveness cannot be established "merely because th[e] petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255," because "[s]uch a holding would effectively eviscerate Congress's intent in amending § 2255"); In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir. 1997) (en banc) (stating that § 2255 is not inadequate or ineffective simply "because an individual is procedurally barred from filing a § 2255 motion"). Such a reading of the savings clause would also recreate the serious structural problems that led Congress to enact § 2255 in the first place. See In re Hanserd, 123 F.3d 922, 925, 934 n. 19 (6th Cir. 1997) ("If [petitioner] and similarly situated inmates proceed under habeas corpus [which must be brought in the district with jurisdiction over the custodian], . . . courts located near large federal prisons will be inundated with such motions, and witnesses and court records will have to travel thousands of miles to the situs of these habeas hearings, which would be held before a judge unfamiliar with the case."); see also United States v. Hayman, 342 U.S. 205, 210-14 (discussing the "practical problems" that prompted the enactment of § 2255).Id. at 50. After discussing the Seventh Circuit's In reDavenport, the Third Circuit's In re Dorsainvil, the SecondCircuit's Triestman in more depth, the Barrett Panel agreedwith their conclusion "that habeas corpus relief under § 2241remains available for federal prisoners in limitedcircumstances." Id. at 52. "But," the Panel reflected that itneed not "articulate those circumstances precisely" in Barrett'scase leaving "that task for another day"; "Applying any of theappropriately narrow standards described above clearlydemonstrates that petitioner is not entitled to § 2241 habeasrelief in this case." Id.

A footnote imbedded in this discussion makes the followingobservation apropos § 2241 petitions and venue: Federal prisoners are permitted to use § 2241 to attack the execution, rather than the validity, of their sentences, and the "inadequate or ineffective" savings clause is not applicable to such attacks since they are outside the bounds of § 2255. See United States v. DiRusso, 535 F.2d 673, 674-76 (1st Cir. 1976) ("Section 2255 . . . does not grant jurisdiction over a post-conviction claim attacking the execution, rather than the imposition or illegality of the sentence. . . . The proper vehicle for attacking the execution of sentence . . . is 28 U.S.C. § 2241."); see also, e.g., Corrao [v. United States], 152 F.3d [188,] 191 [2d Cir. 1998)]; Valona [v. United States], 138 F.3d [693,] 694-95 [(7th Cir. 1998)]. However, Barrett's challenge (despite his claim that he seeks remedies unavailable under § 2255) clearly involves validity. We also note that a § 2241 petition is properly brought in the district court with jurisdiction over the prisoner's custodian (unlike a § 2255 petition, which must be brought in the sentencing court). See [United States v.] DiRusso, 535 F.2d [673,] 675-76 [(1976)]; Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). We will assume arguendo that Barrett has brought his request for § 2241 relief in the right court (despite his assertion in his brief that he was in prison in Colorado when his petition was filed and now is "in Boston, Massachusetts on parole"). See In re Dorsainvil, 119 F.3d [245,] 252 [3d Cir. 1997)]; cf. Phillips v. Seiter, 173 F.3d 609, 610-11 (7th Cir. 1999). Id. at 50 n. 10.

In Sustache-Rivera v. United States the First Circuit alsodiscussed the savings clause and Barrett vis-á-vis an effortto get § 2241 relief in the same district of conviction.221 F.3d 8, 15-17 (1st Cir. 2000). Sustache-Rivera's requested collateralrelief premised on Jones v. United States, 526 U.S. 227, 251-52(1999), the case holding that the serious bodily injuryrequirement in 18 U.S.C. § 2119(2) is an element of a carjackingoffense that must be submitted to the jury. The United StatesSupreme Court's Apprendi v. New Jersey, 530 U.S. 466 (2000), anopinion issued after oral argument on the appeal, the Panel notedgave "Sustache an argument that Jones, while decided as amatter of statutory interpretation, is presently viewed by amajority of the Supreme Court as a constitutionally compelledrule." Id. at 11. The Panel ultimately stated that whether theJones claim was constitutional or statutory was not a questionit needed to resolve and that it also did not need to resolve themeaning of the savings clause, id. at 17, because of a "relateddoctrine": "whether Sustache's petition is properly treated asfalling under § 2255 or under § 2241, he must show cause andprejudice for his failure to have previously made the claim,"id.

However, with respect to its savings clause discussion and thevenue concern, the Panel reflected: One procedural issue is whether a petitioner can avoid the gatekeeping function of the courts of appeals by simply refiling a § 2241 petition in the custodial district court. See, e.g., Hernandez v. Campbell, 204 F.3d 861, 866 (9th Cir. 2000) (remanding § 2241 petition where district court had dismissed petition without determining whether the petition fell under the savings clause); Hooker v. Sivley, 187 F.3d 680 (5th Cir. 1999) (noting that the determination whether a petitioner "may proceed under § 2241 . . . can only be made in the district where he is incarcerated"). Congress did not speak to this issue, and there is little caselaw on point. We avoid this procedural question because the case has come to us in the customary posture, and Sustache has asked us to decide whether the savings clause authorizes him to proceed.Id. at 15-16 (emphasis added); see also id. at 16 n. 13(discussing the "sparing standards" guiding application of thesavings clause in In re Davenport, In re Dorsainvil,Triestman, and Wofford v. Scott, 177 F.3d 1236 (11th Cir.1999) and Barrett).

"A second problem," the Panel observed, "concerns the meaningof the savings clause itself": The savings clause has most often been used as a vehicle to present an argument that, under a Supreme Court decision overruling the circuit courts as to the meaning of a statute, a prisoner is not guilty within the new meaning attributed to the statute. See, e.g., ? Wofford, 177 F.3d at 1242-45; Davenport, 147 F.3d at 610-12; Triestman, 124 F.3d at 373-80; Dorsainvil, 119 F.3d at 248-52. The savings clause has to be resorted to for such a statutory claim because Congress restricted second or successive petitions to constitutional claims. If a Jones claim is purely statutory, then an argument under the savings clause may be warranted. If, post-Apprendi, the Jones claim is a constitutional claim, there is less reason to resort to the savings clause, as Congress permits new constitutional rule claims to be made on second or successive petitions provided that the Supreme Court has made the new rule retroactive (and the claim was not previously available). If the Supreme Court does not ever make the decision retroactive, the prisoner is no worse off than before. If the Supreme Court eventually makes the rule retroactive, the prisoner may at that time attempt a claim by second or successive § 2255 petition.Id. at 16-17 (footnotes omitted).

While Barrett and Sustache-Rivera are a little elusiveapropos the question, I conclude that this court, which withoutdispute has jurisdiction over any § 2255 motions brought byRiggs, can consider whether or not Riggs can evoke the § 2255savings clause by filing a § 2241 motion; I believe the courtneed not dismiss or transfer this petition without making thisdetermination on a theory that § 2241 relief, no matter what itscontour, can only be sought in the district of Riggs'sconfinement. Certainly, by filing the petition in the District of Maine Riggs, like Sustache-Riverahas, as good as, asked this court to decide whether the savingsclause authorizes him to proceed.3 Also, the UnitedStates has briefed the merits of Riggs's Booker claim and Iwould be surprised to hear the United States Attorney for theDistrict of Maine argue that it is not a proper, if not the onlyproper, respondent to challenges to the validity of convictionsand sentences obtained in this district by dint of itsprosecutorial efforts.4

It is true that there are circuits in which any adjudication of§ 2255 savings clause collateral challenges in the districtcourts of conviction is apparently considered improper. See,e.g., Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003)(convicted in District of Rhode Island, § 2241 adjudicated in theWestern District of Texas); United States v. Prevatte,300 F.3d 792, 798-799 & n. 2 (7th Cir. 2002); Hernandez v. Campbell,204 F.3d 861, 865 (9th Cir. 2000); see also In re Nwanze,242 F.3d 521, 524-28 (3rd Cir. 2001) (discussing the complexities ofthe question of proper venue, stating that "it is doubtful thatan inter-district transfer of a section 2241 petition may be madefrom the district of confinement to the district of sentencing tocontinue to be treated after transfer as a section 2241petition," concluding that the court in district of confinementcould transfer a § 2241 petition with a viable challenge to theconviction to the district of conviction as a writ of errorcoram nobis). This is not the uniform practice, however.See Alamin v. Gerlinski, 30 F.Supp.2d 464, 466-68 (M.D. Pa.1998) (transferring a § 2241 savings clause petition to thedistrict of conviction); Alamin v. Gerlinski, 73 F.Supp.2d 607, 610-12 (W.D.N.C. 1999) (granting, in the districtof conviction, § 2241 savings clause relief).5

As a practical matter, the purpose of § 2255's enactment was toenable habeas challenges to convictions to be brought in theirdistrict of conviction to alleviate habeas pressure on districtscontaining federal prisons, see Vasquez v. Reno,233 F.3d 688, 694 (1st Cir. 2000); Barrett, 178 F.3d at 50, and thisstatutory fix was on its face a venue management effort and arecognition of the court of conviction's proper role. Judgingfrom my research into the numerous § 2241 petitions invoking the§ 2255 savings clause, the burden on the districts of confinementof adjudicating these last-hope habeas petitions is notinsubstantial. For venue purposes it is logical to distinguish §2241 petitions which attack the validity of the sentence orconviction from § 2241 petitions that challenge the execution ofa sentence. Looking at it from a logistical prospective, it iscertainly more efficient to adjudicate § 2241 execution ofsentence petitions in the district of confinement. And, whiledistricts housing federal prisoners seem to adjudicate § 2255savings clause § 2241 petitions on a regular basis with localUnited States Attorney offices responding,6 with respectto this genre of savings clause petitions it is the district of conviction that will have the easiest and speediest access tothe criminal record and the sentencing judge,7 the localUnited States Attorney and Pretrial Services offices, and thedefense attorney that will have the historical familiarity withthe case. See Barrett, 178 F.3d at 50. Another concern inpegging venue for validity of conviction/sentence § 2241petitions to the place of confinement is that defendantsconvicted by the same court for the same conduct could (albeit ina limited — but, if the defendants satisfy the § 2255 savingsclause inquiry, pressing — universe of cases) have the ultimatemerits of their conviction determined by (potentially different)courts (inferior to the United States Supreme Court) outside thecircuit of conviction. These determinations could be based onlegal precedents apropos which there are circuit splits andvis-á-vis which the circuit of conviction takes a positiondiametrically opposed to the courts in the districts that theco-defendants happens to be in custody at the time that the §2241 petition is adjudicated. See In re Nwanze,242 F.3d at 524 (noting the district of confinement Magistrate Judge'sobservation that Nwanze was tried, convicted and sentenced withinthe Fourth Circuit and was seeking the benefit of the ThirdCircuit's Dorsainvil decision).8 There is also a risk that convictions obtained against co-defendants at the sametrial for substantially the same criminal act could havedramatically different habeas experiences and outcomes justbecause they are sent to different federal facilities.9 So while the question of the proper venue for the fulladjudication of § 2241 petitions brought under the § 2255 savingsclause remains unanswered in the First Circuit, I do concludethat it is at least appropriate for this Court to review thepetition that Riggs has filed here to determine if the claim isone that qualifies under the § 2255 ¶ 5 exception. And, based onthe cautious acknowledgment by Barrett and Sustache-Rivera ofthe ability to seek § 2241 relief through the § 2255 savingsclause, it is clear that Riggs's Booker claim is not a claimthat satisfies the § 2255 ¶ 5 savings clause criteria. Riggs'sBooker claim is outside the bounds of the "typical" § 2255 ¶ 5/§ 2241 case in at least two respects: (1) it is a first petition,not a second and successive petition, (albeit outside the oneyear limitations period and arguably procedurally barred); and(2) the Booker challenge does not involve a subsequentstatutory interpretation rendering the defendant's conduct nolonger criminal under the federal statute.

There is no dispute in this district that § 2255 Bookerrelief is not available to cases that have finished or forgonethe direct appeals process. See Violette v. United States,___ F. Supp. 2d. ___, ___, 2005 WL 824156, *3 (D. Me. Apr. 8,2005) (Singal, C.J.); May v. United States,___ F. Supp. 2d ___, ___, 2005 WL 839101, *1 (D. Me. Apr. 8, 2005) (Hornby, J.);Gerrish v. United States, 353 F. Supp. 2d 95 (D. Me. 2005)(same); Suveges v. United States, Civ. No. 05-18-P-C, 2005 WL226221, *1 (D.Me. Jan 28, 2005) (Kravchuk, Mag. J.) affirmedOrder Adopting Report and Recommended Decision, Feb. 21, 2005(Docket No. 5) (Carter, J.); Quirion v. United States, Civ. No.05-06-B-W, 2005 WL 83832, 3 (D.Me. Jan. 14, 2005) (Kravchuk, Mag. J.)affirmed Civ. No. 05-06-B-W, 2005 WL 226223 (D. Me. Feb. 1,2005) (Woodcock, J.). The First Circuit now has precedent thatsupports this non-retroactivity determination apropos Bookerclaims. United States v. Fraser, ___ F.3d ___, ___, 2005 WL1090138, *2 (1st Cir. May, 10, 2005) ("This court has held thatpetitions under 28 U.S.C. § 2255 are unavailable to advanceBooker claims in the absence of a Supreme Court decisionrendering Booker retroactive," citing Cirilo-Muñoz);Cirilo-Muñoz v. United States, ___ F.3d ___, ___, 2005 WL858324, *5-6 (1st Cir. Apr. 15, 2005) (recognizing a consensusthat Booker is not retroactive to cases no longer in the directappeal pipeline). And, to date, at least four Circuit Courts ofAppeal have considered and answered the question in publishedopinions and the four are unanimous in concluding that Bookerdoes not apply retroactively to cases so postured. See Guzmanv. United States, ___ F.3d ___, 2005 WL 803214 (2d Cir. Apr. 8,2005); Varela v. United States, 400 F.3d 864 (11th Cir. 2005);Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir.2005); McReynolds v. United States, 397 F.3d 479 (7th Cir.2005); see also United States v. Leonard, 2005 WL 139183,at *2 (10th Cir. Jan.24, 2005) (unpublished opinion on motion toreview sentence).

While Sustache-Rivera never answered whether an Apprendichallenge, for which no § 2255 relief was possible, could bebrought in a § 2241 petition, several Courts of Appeal rebuffedsuch Apprendi/§ 2255 savings clause/§ 2241 initiatives.See, e.g., Love v. Menifee, 333 F.3d 69, 73-74 (2d Cir.2003); Bannerman v. Snyder, 325 F.3d 722, 723-24 (6th Cir.2003); Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343,346-47 (5th Cir. 2002); Okereke v. United States, 307 F.3d 117,120 (3d Cir.); see also United States v. Franco-Montoya, Crim No. 89-22-P-C, 2001 WL 649471,*2 (D. Me. 2001) ("[Franco-Montoya] does not get by the hurdle of§ 2255 until and unless the United States Supreme Court makes theApprendi rule retroactive to cases on collateral review.Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir.2000). It was for that very reason that the First Circuit deniedFranco leave to file a second or successive petition under28 U.S.C. § 2255. . . . He cannot now attempt an `end run' bystyling his petition as brought pursuant to § 2241."). Severaldistrict courts have likewise concluded that Booker § 2241claims do not come under the § 2255 savings clause. See, e.g.Dubose v. Jeter, Civ. No. 05-17, 2005 WL 955003, 1-2 (N.D.Tex.2005); Francois v. Rivera, Civ. No. 05-26, 2005 WL 927408, *1(N.D. Fla. 2005); Tineo v. Le Blanc, Civ. No. 05-318, 2005 WL740520, *1-3 (D. Minn. 2005). I am satisfied that Riggs is notentitled to proceed with his § 2241 petition as his Bookerclaim does not meet the "sparing standards" of the § 2255 ¶ 5savings clause.10 Conclusion

For the above reasons I recommend that the Court GRANT theGovernment's motion to dismiss and DISMISS Riggs's28 U.S.C. § 2241 petition because his Booker claim cannot be brought in a §2241 petition.


A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection. Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.

1. As a fourth basis for its motion to dismiss the Governmentargues that Riggs's Apprendi claim was already decidedadversely to him on direct appeal and that fact bars his attemptto raise this Booker claim on collateral review.

2. I do not address the statute of limitations argumentadvanced by the United States because I believe it is unnecessaryin light of the fact that the petition can be dismissed on othergrounds and the statute of limitation question is currentlypending before the United States Supreme Court. As the lengthydiscussion herein suggests, I am satisfied that with a casepostured such as one, this court does have the authority to reachthe underlying issue raised by this § 2241 petition even thoughthe petition was not filed in the District of Riggs'sconfinement. To dismiss this § 2241 petition, suggesting that itcould only be filed in the District of confinement, would be toinvite a waste of judicial resources and an exercise in futilityfor the already overburdened Northern District of New York.

3. There is no civil filing electronically on record in theNorthern District of New York.

4. This dynamic distinguishes a § 2255 savings clause § 2241from the alien and prisoner conditions of confinement (or adtestificandum) analyzed in Vasquez, 233 F.3d at 690-97.

5. And this is not the first time the question of a propervenue for a § 2241 has arisen in this court. In United States v.Franco-Montoya, Crim No. 89-22-P-C, 2001 WL 649471, *1-2 (D. Me.2001) I addressed a § 2241 petition bringing an Apprendi claim.That petition and motion originated in the United States DistrictCourt for the Southern District of Florida. That court orderedthat in legal effect the pleading was a motion to vacate pursuantto 28 U.S.C. § 2255 and, because the motion attacked a convictionentered in the United States District Court for the District ofMaine, venue was ordered transferred to this court. Regarding the§ 2241 venue concern I indicated in a footnote: I need not discuss venue problems associated with bringing a petition pursuant to § 2241 in a court other than in the district court with jurisdiction over the prisoner's custodian. See United States v. Barrett, 178 F.3d at 50 n. 10 (1st Cir. 1999). For an interesting discussion of the problems that can occur when courts in two different circuits characterize a petition differently for purposes of § 2241/§ 2255 analysis see In re Austen O. Nwanze, 242 F.3d 521 (3d Cir. 2001).Id. at 2 n. 1.

6. Christopher concerned a conviction in the District ofRhode Island. The docket of that § 2241 petition in the WesternDistrict of Texas, Civ. No. 01-763, indicates that an AssistantUnited States Attorney responded to the petition. It also showsthat, six months after the government's response was filed, thecourt had to enter an order requiring the United States toprovide the court with a copy of Christopher's criminal trialrecord from the District of Rhode Island. (Docket No. 7.)Managing a petition challenging the validity of a conviction inthe district of confinement makes little practical sense when thecourt needs such detailed access to the record of underlyingproceedings. However, in those cases where the district ofconfinement is satisfied that summary dismissal of the § 2241/§2255 petition is warranted, it may make perfect sense to say thatthe district of confinement has "jurisdiction" over thepetition.

7. The First Circuit Court of Appeals has stated that thesentencing court is free to rely on its firsthand knowledge ofthe criminal proceedings in reviewing collateral challenges.See United States v. McGill, 11 F.3d 223, 225 (1993)(observing that, when, a "petition for federal habeas relief ispresented to the judge who presided at the petitioner's trial,the judge is at liberty to employ the knowledge gleaned duringprevious proceedings and make findings based thereon withoutconvening an additional hearing.").

8. This raises the specter, depending on what parameters thedistrict/circuit of conviction places on the § 2255 savingsclause, that a defendant convicted under one district/circuitcourt holding could obtain § 2241 relief in his district ofconfinement because he happens to be sent to a prison facilitywhere there is a contradictory interpretation of, say, theconduct reached by the statute under which he was convicted. Forexample, prior to the United States Supreme Court's Ashcroft v.Free Speech Coalition, 535 U.S. 234, 243-44 (2002), the Fifth,United States v. Fox, 248 F.3d 394 (5th Cir. 2001), Fourth,United States v. Mento, 231 F.3d 912 (4th Cir. 2000), Eleventh,United States v. Acheson, 195 F.3d 645 (11th Cir. 1999), andFirst, United States v. Hilton, 167 F.3d 61 (1st Cir. 1999)Circuits were at odds with the Ninth Circuit, Free SpeechCoalition v. Reno, 193 F.3d 1083 (9th Cir. 1999) on the conductreached by 18 U.S.C. § 2256(8)(B) and (D).

9. Comparing the experiences of Prevatte and his co-defendantillustrates this point. In a 1992 criminal proceeding in theNorthern District of Indiana Prevatte was convicted of detonatinga pipe bomb in a residential alley that punctured a gas metercausing an explosion, shrapnel from which killed an abuttingresident. The grand jury charged Prevatte (and co-defendants,including Robert Soy) with; "1. Conspiracy to maliciously damageor destroy property by means of an explosive under18 U.S.C. § 844(i); 2.Maliciously damaging or destroying property by means ofan explosive under 18 U.S.C. § 844(i). (Five counts); 3.Possession of a firearm in violation of 26 U.S.C. §§ 5845(f),5861(c) and 18 U.S.C. § 2. (Ten counts); 4. Making a firearm inviolation of 26 U.S.C. §§ 5845(f), 5861(f) and 18 U.S.C. § 2.(Five counts)." United States v. Prevatte, 16 F.3d 767, 772(7th Cir. 1994). Two semi-successful appeals followed. Seeid.; United States v. Prevatte, 66 F.3d 840 (7th Cir. 1995).On April 21, 1997, Prevatte filed a 28 U.S.C. § 2255 motion, Civ.No. 97-249, after his re-sentencing in 1996 following his seconddirect appeal. That motion was denied on September 25, 1997. Prevatte filed his § 2241 petition in the Central District ofCalifornia on November 23, 1999. After the district courtdismissed the § 2241 petition for want of subject matterjurisdiction (conceiving of the claims as only being tenable as §2255 claims), the Ninth Circuit, in view of Hernandez,204 F.3d at 865, concluded in a September 21, 2001, opinion that it didnot have jurisdiction over Prevatte's § 2241 petition challenginghis Indiana conviction because Prevatte had been transferred froma federal facility in California to a federal facility inColorado. See Prevatte v. Adams, Civ. No. 99-12107, 2001 WL1116900, *1 (9th Cir. 2001). The decision that turned out to be key to Prevatte's argument,Jones v. United States, 529 U.S. 848 (2000), which ironicallyarose from the Northern District of Indiana also, was decided onMay 22, 2000. After being rebuffed by the Ninth Circuit, Prevattefiled a motion with the Seventh Circuit asking it to recall themandate in his criminal case. The Seventh Circuit determined thatthis motion ought to be construed as a petition under § 2241.300 F.3d at 794. The Panel concluded, in this August 8, 2002 opinion,that "Prevatte has brought a non-frivolous challenge to hisconviction by alleging that, due to an intervening decision ofthe Supreme Court of the United States that narrows significantlythe statute under which he was convicted, he stands convicted ofhaving committed an act that Congress did not intend tocriminalize" and that a court with jurisdiction over the § 2241petition would determine that there was no procedural impedimentto considering the petition on the merits" 300 F.3d at 802, thecase was transferred to the District of Colorado and opened onits docket, Civ. No. 02-1562, on August 13, 2002. On October 14,2002, the court entered an order to show cause why the petitionshould not be granted. The United States apparently respondedwith an argument that the case should be dismissed for want ofjurisdiction. (See Docket Nos. 11 & 16.) On June 23, 2004,Prevatte moved for an order to obtain his trial records and therespondents filed the trial record from the Northern District ofIndiana on October 27, 2004. There has been no docket activitysince November 26, 2004. So, it has been five years sincePrevatte filed his initial § 2241 petition. Meanwhile, Prevatte's co-defendant, Robert Soy, did not file a§ 2255 petition in the Northern District of Indiana after his1996 resentencing until December 27, 2000, Civ. No. 00-624. TheCourt granted the motion as to one count and vacated that verdicton Jones ground, according to The United States' response toSoy's motion for a certificate of appealability, and denied it inall other respects. (Docket No. 61.) The motion for appealabilitywas denied in a six-page order. (Docket No. 76.) However on March29, 2004, the Seventh Circuit Court of Appeals granted Soy'sapplication for a certificate of appealability stating: "Thesubstantial constitutional issue is whether Soy's conviction oncount one for conspiracy violates Jones v. United States,529 U.S. 848 (2000)." (Docket No. 83.) It appears, then, that while the District of Colorado (andperhaps eventually the Tenth Circuit Court of Appeals) will bedeciding Prevatte's collateral Jones challenge to hisconvictions, the Seventh Circuit Court of Appeals will decide hisco-defendant's collateral Jones challenge. This outcome isquite different than the Tenth Circuit deciding whetherPrevatte's sentence is being executed in a manner that comportswith the United States Constitution and the Seventh Circuitdeciding whether that sentence was valid in the first place.

10. Unlike Sustache-Rivera, Riggs has not yet spent his first§ 2255 currency, although he does appear to have let the § 2255 ¶6(1) time run. Riggs may still have in the bank a first-time §2255 motion that is timely under § 2255 ¶ 6(3), and the timingquestions of a Booker challenge so postured may be answered bythe Supreme Court's decision which is pending in its review ofDodd v. United States, 365 F.3d 1273 (11th Cir. 2004). In thatcase the Court granted cert on the question: Does the one-year period of limitation in paragraph 6(3) begin to run on the date that this Court initially recognizes the right asserted, regardless of whether the right has been newly recognized or made retroactively applicable to cases on collateral review, or does it begin to run on the date on that a prisoner can show that all three of its prerequisites have been established; that is, that the right asserted "was initially recognized" by this Court, "has been newly recognized" by this Court, and "made retroactively applicable to cases on collateral review?"(Pet'r Br., 2005 WL 353696 at *I; see also United States Br.,2005 WL 122089 at *I.) Given the lively discussion of theoperation of this subsection during the March 22, 2005, oralargument, the transcript of which is available at 2005 WL 75741,the Court may well decide that the ¶ 6(3) year runs from the datethat the Supreme Court, and not any lower court, makes the caseretroactive to cases on direct appeal so that the ¶ 6(3)provision, although worded differently, has the same prerequisiteto ¶ 2255 relief as does ¶ 8(2) apropos second or successivemotions. Riggs, by withdrawing his § 2255 motion last year and notrefiling it within the ¶ 6(1) year, may think he is keeping sucha challenge available to him in a safe deposit box. Of course thewisdom of such a strategy will depend on the outcome of Dodd.As to whether this court will treat the ultimate judgment in this§ 2241 savings clause petition as an adjudication of a first §2255 motion, I intimate no opinion except to say that there is apotential that the United States will argue that the court shoulddo so in any subsequent § 2255 proceeding. This is exactly whyJustice Scalia pointed out in Castro that even the court's wellmeaning recharacterization of petitions could be hazardous topetitioners in this complex area of the law. Castro,540 U.S. at 387-88 (Scalia, J., concurring in part and concurring injudgment) ("[E]ven fully informed district courts that try theirbest not to harm pro se litigants by recharacterizing maynonetheless end up doing so because they cannot predict andprotect against every possible adverse effect that may flow fromrecharacterization. But if district courts are unable to providethis sort of protection, they should not recharacterize intofirst § 2255 motions at all.").

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