Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Washington v. Warden, Federal Correctional Institution, Berlin

United States District Court, D. New Hampshire

August 17, 2017

George Washington
v.
Warden, Federal Correctional Institution, Berlin, New Hampshire

          Seth R. Aframe, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone, United States Magistrate Judge.

         This 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 The court has withdrawn the May 5 R&R by separate Order issued on this date.

         Petitioner 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).

         Standard

         In 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).

         Background

         On May 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.

         Washington 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) .

         On 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) Application").

         Washington 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).

         Discussion

         I. Savings Clause

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.