United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION ON DOCUMENT NOS. 1 &
K. Johnstone United States Magistrate Judge.
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.
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).
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”).
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).
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,
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.
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.
Savings Clause Jurisdiction
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
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 ...