Hernandez-Vilar v. Antonelli

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         Antonio Hernandez-Vilar (“Petitioner”), proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief.^[1] Petitioner is an inmate at FCI-Williamsburg, part of the Federal Bureau of Prisons system. Petitioner paid the filing fee. Receipt No. SCX300074764.

         I. Factual and Procedural Background

         Petitioner was convicted of one count of possession of an unauthorized access device on a guilty plea in the United States District Court for the Middle District of Georgia (“the sentencing court”). United States v. Hernandez-Vilar, No. 7:14-cr-0021-HL-TOL-4 (M.D. Ga.). On March 3, 2015, he was sentenced to a prison term of 80 months. On February 24, 2016, Petitioner filed an initial motion to vacate sentence under 28 U.S.C. § 2255 in the sentencing court. The motion asserted that he was provided ineffective assistance of counsel when a direct appeal was not filed. The § 2255 motion was denied and Petitioner's appeal from that denial to the Eleventh Circuit Court of Appeals was unsuccessful. Petitioner then filed an unsuccessful petition under 28 U.S.C. § 2254, raising the subject-matter jurisdiction claim that he raises in this case. Hernandez-Vilar v. Hancock, No. 1:17-cv-0047-WLS-TOL (M.D. Ga.).

         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. The review was conducted pursuant to the procedural provisions of the Rules Governing Habeas Corpus Cases Under Section 2254 and the Anti-Terrorism and Effective Death Penalty Act 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).

         This court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the petition submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         III. Discussion

         In the Petition under review, Petitioner contends that his conviction should be vacated because it was entered in absence of subject-matter jurisdiction and because he was not properly taken from Georgia state custody by federal authorities through a detainer or bench warrant. ECF No. 1 at 6. Petitioner's allegations of conviction in absence of jurisdiction and without use of the proper procedures for removing him from state custody all go to the underlying validity of his conviction rather than to the manner of execution of the sentence, the most commonly accepted subject matter for petitions filed pursuant to § 2241. See Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999) (collecting cases from other circuits).

         In this Circuit it is settled that “[a]s a threshold matter . . . defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc)). The Fourth Circuit Court of Appeals has held that challenges to the underlying validity of a federal criminal conviction are not properly considered under § 2241 unless Petitioner can come within the § 2255 savings clause by showing that this is an exceptional case where § 2255 is neither an adequate nor effective remedy for those issues. See In re Jones, 226 F.3d 328, 333 (4th Cir. 2000); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1977); Farrow v. Revell, 541 F. App'x 327, 328-29 (4th Cir. 2013). In other words, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. The “savings clause” states:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e). With regard to the application of the § 2255 savings clause to § 2241 petitions, it is settled in this circuit that the possibility that a second § 2255 motion filed by Petitioner in the sentencing court might be found untimely or successive does not render the § 2255 remedy inadequate or ineffective. See In Re Vial, 115 F.3d at 1194 n.5; see also Jiminian v. Nash, 245 F.3d 144, 147-48 (2d Cir. 2001) (collecting cases).

         To trigger the savings clause of § 2255(e) and proceed under § 2241, Petitioner must show that something more and different should be considered by the court than that authorized by § 2255, such as a retroactive change in the law that was applied to his conviction or sentence by the sentencing court as contemplated in In re Jones, 226 F.3d 328. The Jones court held that 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 gate-keeping provisions of § 2255 because the new rule is not one of constitutional law.” Jones, 226 F.3d at 333-34. Here, Petitioner makes no allegations that the § 2255 is inadequate or ineffective to test the constitutionality of his confinement. The § 2241 petition form that he filled out has a specific question on it that provides an opportunity for a petitioner to express reasons why the § 2255 remedy is inadequate or ineffective. Here, though, Petitioner wrote only “N/A” in the space provided after that question. ECF No. 1 at 5. Under these circumstances, this court cannot proceed under § 2241 to overrule the sentencing court, which has already ...