United States District Court, D. New Hampshire
LANDYA McCAFFERTY, District Judge.
Jackson Nascimento filed this action under 28 U.S.C. § 2241, challenging his 2005 conviction and ten-year mandatory minimum sentence under 18 U.S.C. § 924(c), claiming that the sentencing court in Massachusetts improperly decided an issue affecting the length of the mandatory minimum, in violation of Alleyne v. United States, 133 S.Ct. 2151 (2013). Before this court is the government's motion to dismiss (doc. no. 10), which asserts that the Alleyne claim does not fall within this court's jurisdiction under § 2241, as circumscribed by 28 U.S.C. § 2255(e). Nascimento objects (doc. no. 12), and has filed supplemental legal memoranda (doc. nos. 13-16) that this court deems to be addenda to his objection.
In United States v. Nascimento, No. 1:03-cr-10329-PBS (D. Mass.) ("Criminal Case"), the jury, in 2005, convicted Nascimento of various gang-related offenses, including a violation of 18 U.S.C. § 924(c) (using a firearm in relation to crime of violence). The jury specifically found that Nascimento had used a firearm in an assault in which the victim was shot. See United States v. Nascimento, 491 F.3d 25, 31 (1st Cir. 2007) ("Nascimento I"); Criminal Case, No. 1:03-cr-10329-PBS (D. Mass. Mar. 15, 2005) (Jury Verdict Form) (ECF No. 840). In a sentencing memorandum, Nascimento's trial counsel argued that the mandatory minimum applied to the § 924(c) conviction should be 60 months, as the jury found that Nascimento had "used" a firearm, but had not been asked whether Nascimento had "discharged" it, an act carrying a longer, 120-month mandatory minimum pursuant to § 924(c)(1)(A)(iii). See Criminal Case, No. No. 1:03-cr-10329-PBS (D. Mass. Mar. 15, 2005) (Sent. Mem.) (ECF No. 1121). The government responded that the undisputed evidence showed that Nascimento had shot the victim, and that, under then-existing law, see Harris v. United States, 536 U.S. 545 (2002), overruled by Alleyne, 133 S.Ct. at 2163, the sentencing court could decide whether Nascimento had discharged the gun. The court sentenced Nascimento to a prison term of 171 months, including the 120-month mandatory minimum on the § 924(c) charge. See Criminal Case, No. 1:03-cr-10329-PBS (D. Mass. Dec. 19, 2005) (ECF No. 1133). The First Circuit affirmed Nascimento's conviction. See Nascimento I, 491 F.3d at 51.
In 2008, Nascimento filed his first motion under 28 U.S.C. § 2255. The sentencing court denied that motion, see United States v. Nascimento, No. 1:08-cv-10993-PBS, 2009 U.S. Dist. LEXIS 95355 (D. Mass. Oct. 9, 2009) ("Nascimento II") (ECF No. 4), slip op. at 2, 7, and the First Circuit affirmed the denial. See Nascimento v. United States, No. 09-2416, 2010 U.S.App. LEXIS 27462 (1st Cir. May 19, 2010). Nascimento filed a number of supplemental post-conviction motions, including an application to the First Circuit for permission to file a successive § 2255 motion asserting an Alleyne claim. The First Circuit denied that application on the basis that the Supreme Court had not declared Alleyne to be retroactive. See Nascimento v. United States, No. 13-8021 (1st Cir. Aug. 16, 2013) ("Nascimento III").
In this court, Nascimento filed a petition under 28 U.S.C. § 2241, reasserting his Alleyne challenge to his § 924(c) conviction and sentence. Nascimento argues here that the jury convicted him of "using" a firearm, but did not specifically convict him of "discharging" that firearm, and that he is thus innocent of the "discharging" aspect of § 924(c). He further contends that the sentencing court perpetrated an Alleyne error in finding that he had discharged the firearm, by sentencing him to the 120-month mandatory minimum for "discharging" a firearm.
I. Motion to Dismiss Standard
Respondent's motion to dismiss is governed by Federal Rule of Civil Procedure 12(b)(1). See generally Fed.R.Civ.P. 81(a)(4); Rules 1(b) and 12 of the Rules Governing § 2254 Cases ("§ 2254 Rules"). "When a defendant moves to dismiss for lack of federal subject matter jurisdiction, the party invoking the jurisdiction of a federal court carries the burden of proving its existence." Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007) (internal quotation marks and citation omitted). Accordingly, petitioner here bears the burden to show that this court has subject matter jurisdiction over his claims. See Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir. 1996).
II. Savings Clause Jurisdiction
In general, the court in which a federal defendant was convicted and sentenced has exclusive jurisdiction over postconviction proceedings challenging the validity of the conviction or sentence, pursuant to 28 U.S.C. § 2255. Section 2255 limits the use of § 2241 petitions, filed by federal prisoners in the district of their incarceration, as a means of challenging their sentences and convictions. See United States v. Barrett, 178 F.3d 34, 49 (1st Cir. 1999). The relevant statutory provision, 28 U.S.C. § 2255(e), is known as the "savings clause" of § 2255. The savings clause provides as follows:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained... unless it... appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.
Id. (emphasis added). The issue of the adequacy and effectiveness of the § 2255 remedy in a particular case is jurisdictional, as the proper district for filing the petition depends upon whether the petition is filed under § 2241 or § 2255. See Bryant v. Warden, 738 F.3d 1253, 1262 (11th Cir. 2013).
The Supreme Court has not ruled on the scope of the savings clause, with respect to a claim like Nascimento's. The First Circuit and other federal appellate courts have established principles, however, governing how a district court should determine whether the § 2255 remedy is adequate or effective in a particular case. "[A]dequacy and effectiveness must be judged ex ante.... [P]ost-conviction relief can be termed inadequate' or ineffective' only when, in a particular case, the configuration of section 2255 is such as to deny a convicted defendant any opportunity for judicial ...