United States District Court, D. New Hampshire
R. Aframe, Esq.
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge.
Report and Recommendation ("R&R") replaces the
May 5, 2016 R&R (Doc. No. 7) ("May 5 R&R").
The court has withdrawn the May 5 R&R by separate Order
issued on this date.
George Washington, while incarcerated at the Federal
Correctional Institution in Berlin, New Hampshire, filed a
petition for a writ of habeas corpus (Doc. No. 1),
challenging the validity of his sentence imposed pursuant to
a criminal conviction in the District of Maine. See
United States v. Washington, No. 2:03-cr-00041-DBH-4 (D.
Me.) ("Criminal Case"). The petition is
before this court for preliminary review to determine whether
Washington's claims are facially valid and may proceed.
See Rule 4 of the Rules Governing Section 2254 Cases
("§ 2254 Rules"); § 2254 Rule 1(b)
(authorizing court to apply § 2254 Rules to § 2241
petitions); LR 4.3(d)(4)(A).
undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition contains sufficient factual
allegations, accepted as true, to state a claim to relief
that appears legally sufficient. See McFarland v.
Scott, 512 U.S. 849, 856 (1994). When a habeas
petitioner proceeds pro se, the assertions contained in the
petition are construed liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
31, 2006, following a remand for resentencing in a drug
conviction case in light of United States v. Booker,
543 U.S. 220 (2005), a federal judge in the District of Maine
sentenced Washington to a prison term of 360 months, the
bottom of the sentencing range for a career offender, under
section 4B1.1 of the United States Sentencing Guidelines
("Guidelines"). See Am. J., Criminal
Case (D. Me. May 31, 2006) (ECF No. 229); see also
Criminal Case, 2011 U.S. Dist. LEXIS 138463, *l-*2, 2011
WL 6032931, at *1 (D. Me. Dec. 1, 2011) (ECF No. 347)
(discussing procedural history). A criminal defendant may be
treated as a career offender under the Guidelines, if he
"has at least two prior felony convictions of either a
crime of violence or a controlled substance offense."
U.S.S.G. § 4B1.1.
had been sentenced as a career offender in 2004 because he
had one prior controlled substance conviction, which he does
not dispute, and two prior Massachusetts convictions that the
sentencing court determined met the Guidelines definition of
"crime of violence": assault and battery
("A&B") and "assault and battery with a
dangerous weapon" ("ABDW"), United States
v. Washington, 324 F.Supp.2d 48, 49 (D. Me. 2004)
("ABDW Decision"); see also Criminal
Case, Tr. of Sent'g Hr'g, May 26, 2004, at 19
(ECF No. 183). In the 2006 resentencing proceeding, the court
did not revisit the career offender determinations. See
Criminal Case, Tr. of Resent'g Hr'g, May 31,
2006, at 34 (ECF No. 233). The First Circuit affirmed the
amended sentence. See United States v. Washington,
220 Fed.Appx. 1 (1st Cir. 2007) .
September 8, 2008, Washington filed a motion in the District
of Maine challenging his 2006 sentence under 28 U.S.C. §
2255. That court denied the motion. See Washington v.
United States, No. 2:08-cv-00293-DBH, 2009 U.S. Dist.
LEXIS 92362, 2009 WL 3152883 (D. Me. Sept. 28, 2009) (ECF No.
23), R&R approved, No. 2:08-cv-00293-DBH (D. Me.
Jan. 6, 2010) (ECF No. 31). Washington then filed separate
applications in 2014 and 2015, seeking the First
Circuit's permission under 28 U.S.C. § 2255(h) to
file successive § 2255 motions in his criminal case,
raising the claims he has raised here. The First Circuit
denied those applications. See Washington v. United
States, No. 14-1461 (1st Cir. June 4, 2014);
Washington v. United States, No. 15-2316 (1st Cir.
July 24, 2017) ("Second 2255(h)
contends here, as he did in the First Circuit, that in light
of United States v. Johnson, 135 S.Ct. 2551 (2015),
and Descamps v. United States, 133 S.Ct. 2276
(2013), Washington must be resentenced. Washington argues
that the sentencing court erred when it determined that his
prior A&B and ABDW convictions qualified as crimes of
violence under the Guidelines. Washington further contends
that his § 2241 petition fits within the scope of this
court's savings clause jurisdiction, pursuant to 28
U.S.C. § 2255(e).
general, the court in which a federal defendant was convicted
and sentenced has exclusive jurisdiction over motions
challenging the validity of the conviction or sentence,
pursuant to 28 U.S.C. § 2255. Section 2255(e)'s
"savings clause" preserves only a limited role for
this court to consider claims filed by a federal prisoner ...