United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Federal prisoner Carlos Alberto Prieto has filed a petition for a writ of habeas corpus (doc. no. 1), and an addendum to that petition (doc. no. 5), pursuant to 28 U.S.C. § 2241. Respondent has moved to dismiss for lack of subject matter jurisdiction (doc. no. 11). Prieto objects (doc. no. 15).
Prieto challenges his conviction, obtained in the Southern District of Florida, for aiding and abetting the use and carrying of a firearm during and in relation to a violent crime, namely, a June 4, 1996, attempted robbery of a UPS truck, pursuant to 18 U.S.C. §§ 2 and 924(c)(1). Prieto filed this action pursuant to 28 U.S.C. § 2241, seeking to invoke this court's jurisdiction, as at the time Prieto filed this action, he was incarcerated in the federal prison in Berlin, New Hampshire.
In seeking to invoke this court's jurisdiction, Prieto has relied on Rosemond v. United States, 134 S.Ct. 1240 (2014). Rosemond held that in order to convict in circumstances such as Prieto's, the jury must find that the defendant had advance knowledge that a firearm would be used or carried in the commission of the underlying crime of violence. See id. at 1251. Prieto argues that his conviction for aiding and abetting the use of a firearm was improper because he had no advance knowledge that a firearm would be used, and the jury was not instructed that proof of advanced knowledge was required for a conviction. Prieto further argues that because Rosemond was issued after the decisions in Prieto's direct appeal of his conviction,  and after his initial motion challenging his conviction under 28 U.S.C. § 2255 was denied by the Southern District of Florida,  § 2255 proceedings have been inadequate and ineffective to correct the error in his case. Respondent has moved to dismiss the petition for lack of subject matter jurisdiction. See Doc. no. 11.
I. Savings Clause Jurisdiction
In general, pursuant to 28 U.S.C. § 2255, the court in which a federal defendant was convicted and sentenced has exclusive jurisdiction over post-conviction proceedings challenging the validity of the conviction or sentence. Section 2255(e), known as the "savings clause, " preserves a limited role for the court in the district of a federal inmate's incarceration to exercise jurisdiction, under 28 U.S.C. § 2241, to consider a challenge to the validity of an inmate's detention. See United States v. Barrett, 178 F.3d 34, 49 (1st Cir. 1999). Section 2255(e) 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.
28 U.S.C. § 2255(e) (emphasis added). The issue of the adequacy and effectiveness of the § 2255 remedy in a case is jurisdictional, as the proper district for filing the petition depends on whether the petition is filed under § 2241 or § 2255. See Bryant v. Warden, 738 F.3d 1253, 1262 (11th Cir. 2013).
"[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 rectification.'" Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008) (citation omitted). If nothing prevented the petitioner from raising his § 2241 claims in a first § 2255 motion, he cannot prevail in asserting that the § 2255 process has been inadequate or ineffective to challenge his detention. See generally Bryant, 738 F.3d at 1272; see also Barrett, 178 F.3d at 53.
The First Circuit has not articulated all of the circumstances under which a petitioner may access the savings clause. The First Circuit has recognized, however, that the savings clause is available for petitioners asserting statutory claims based on new binding precedent, previously unavailable to them, that narrows the scope of a criminal statute in a manner that would have rendered them not guilty of criminal conduct. See Sustache-Rivera v. United States, 221 F.3d 8, 16 n.14 (1st Cir. 2000) (citing cases allowing § 2241 petitions to be filed after Bailey v. United States, 516 U.S. 137 (1995), narrowed the definition of "use" of firearm in 18 U.S.C. § 924(c)(1))). The First Circuit has also noted that "[m]ost courts have required a credible allegation of actual innocence, " before a petitioner can access the savings clause. Trenkler, 536 F.3d at 99. See generally United States v. Almenas, 52 F.Supp. 3d 341, 345 (D. Mass. 2014) ("the savings clause is most often used in situations where a retroactive Supreme Court decision as to the meaning of a criminal statute would mean that [the petitioner] was not guilty of the crime of which he was convicted, " and that most courts have required "a credible allegation of actual innocence that the petitioner could not have effectively raised at an earlier time, " before allowing petitioners to take advantage of savings clause).
A. Prior Opportunity for Judicial ...