Conlan v. Hazlewood

          REPORT AND RECOMMENDATION ON DOCUMENT NOS. 1 & 7

          Andrea K. Johnstone United States Magistrate Judge.

         Joshua Conlan, while incarcerated at the Federal Correctional Institution in Berlin, New Hampshire, filed a petition for a writ of habeas corpus (Doc. No. 1), pursuant to 28 U.S.C. § 2241, challenging his 2013 criminal conviction and sentence in the Western District of Texas. This court's September 15, 2017 Report and Recommendation (“September 15 R&R”) (Doc. No. 4) recommended dismissal of the § 2241 petition for lack of savings clause jurisdiction. Conlan then filed a “Motion to Reinstate Action Due to New Evidence” (Doc. No. 7), while the September 15 R&R remained pending. This court has construed Document No. 7, in part, to be a motion to reconsider the September 15 R&R, addressed to the undersigned magistrate judge. An Order issued this date withdraws the September 15 R&R, and this Report and Recommendation replaces it.

         Preliminary Review Standard

         Conlan's petition (Doc. No. 1) and the allegations in Document No. 7 which relate to Conlan's claims are before this court for preliminary review to determine whether the petition is 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). Because Conlan is proceeding pro se, his pleadings are construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

         Background

         Conlan was convicted, in the Western District of Texas, of three counts of interstate stalking targeting a victim (“JMP”) and her husband. See United States v. Conlan, No. 1:11-cr-00451-LY-1 (W.D. Tex.). The Fifth Circuit affirmed the conviction. See United States v. Conlan, 786 F.3d 380 (5th Cir. 2015). Conlan thereafter filed a motion pursuant to 28 U.S.C. § 2255 in his criminal case, which was denied. See Conlan v. United States, No. A-11-CR-451(1) LY, 2015 WL 8362905, at *5, 2015 U.S. Dist. LEXIS 163935, at *14 (W.D. Tex. Dec. 7, 2015) (ECF No. 273), R&R approved, No. A-11-CR-451(1) LY, Order (W.D. Tex. May 17, 2016) (ECF No. 296) (“Order on § 2255 Motion”).

         In 2016, while incarcerated in a federal facility in Virginia, Conlan filed a § 2241 petition, challenging the same conviction at issue here. See Conlan v. Wilson, No. 16-cv-116-LO-MSN (E.D. Va.) (“Wilson”). In Wilson, as here, Conlan argued that evidence not presented to the jury, consisting of his JMP's February 2011 affidavit, see id., Protective Ord. Aff. (E.D. Va. filed Feb. 4, 2016) (ECF No. 1-1), stating that she had a dating relationship with petitioner, would have undermined her credibility and proved his actual innocence, if that evidence had been presented at trial. See id., Pet. and Mem. (E.D. Va. filed Feb. 4, 2016) (ECF Nos. 1, 2). The Eastern District of Virginia dismissed Conlan's § 2241 petition, after finding an absence of savings clause jurisdiction over the matter. See Wilson, Order (E.D. Va. Apr. 15, 2016) (ECF No. 6). The Fourth Circuit affirmed that decision. See 671 F. App'x 222, 2016 WL 7378388, 2016 U.S. App. LEXIS 22672 (4th Cir. Dec. 20, 2016) (per curiam).

         Conlan also filed a post-verdict motion for a new trial in the Western District of Texas. That court denied the motion. See Conlan v. United States, No. A-11-CR-451(1) LY, Order (W.D. Tex. Aug. 29, 2016) (ECF No. 307) (“August 29 Order”). The Fifth Circuit dismissed Conlan's appeal of the August 29 Order, and Conlan's petition for writ of certiorari to the Supreme Court was denied. See United States v. Conlan, 680 F. App'x 339, 340 (5th Cir. 2017) (per curiam), cert. denied, No. 17-5599, 2017 WL 3574305, 2017 U.S. LEXIS 4940, 86 U.S.L.W. 3156 (U.S. Oct. 2, 2017).

         Liberally construed, the § 2241 petition filed in this court (Doc. No. 1) presents the same claims, relating to JMP's 2011 affidavit, previously raised in Conlan's motion for new trial in his criminal case, and asserted in the § 2241 petition in Wilson. Conlan has also challenged his conviction here and in Wilson, on the ground that it was based on JMP's false testimony relating to their relationship, and that Count 3 of the indictment did not allege two or more acts and was insufficient to charge Conlan with interstate stalking under 18 U.S.C. § 2261A.

         In the instant “Motion to Reinstate Action Due to New Evidence” (Doc. No. 7), Conlan presents a set of documents, which he asserts constitute new evidence, supporting his actual innocence claim. Conlan characterizes those documents as “Trial Transcripts, Police Reports, Affidavits, phone records, Administrative Remedy Gr[ie]vances, Internal Prison emails, as well as the Superseding Indictment.” Doc. No. 7, at 1.

         Discussion

         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 consider a § 2241 petition challenging the validity of the inmate's detention. See United States v. Barrett, 178 F.3d 34, 49 (1st Cir. 1999). The savings clause provides, in pertinent part:

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 ...