Humberto Sanchez-Rengifo v. J. F. Caraway

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2876
HUMBERTO SANCHEZ-R ENGIFO,
Petitioner-Appellant,
v.
J. F. C ARAWAY,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:14-cv-00064-WTL-WGH — William T. Lawrence, Judge.
____________________
SUBMITTED NOVEMBER 19, 2014 — D ECIDED A UGUST 14, 2015
____________________
Before R IPPLE , MANION, and WILLIAMS , Circuit Judges.
R IPPLE , Circuit Judge. Humberto Sanchez-Rengifo,
imprisoned after a conviction in the District of Columbia,
brought a petition for a writ of habeas corpus under 28
U.S.C. § 2241 in the United States District Court for the
Southern District of Indiana, the district in which he is
serving his sentence. The district court denied the petition
and did not address the matter of a certificate of
appealability. Mr. Sanchez-Rengifo then filed an appeal here.

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2 No. 14-2876
We conclude that, for purposes of habeas corpus relief, Mr.
Sanchez-Rengifo’s petition must be deemed as seeking relief
from a detention “aris[ing] out of process issued by a State
court,” 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability
is therefore required before he can pursue an appeal in this
court. On review of Mr. Sanchez-Rengifo’s submissions, we
conclude that a certificate of appealability cannot be granted.
Accordingly, we dismiss Mr. Sanchez-Rengifo’s petition for
lack of jurisdiction.
I
BACKGROUND
A.
Mr. Sanchez-Rengifo was convicted by a jury in the
Superior Court of the District of Columbia of, among other
crimes, three counts of first-degree child sexual abuse while
armed and one count of second-degree child sexual abuse
while armed. The District of Columbia Court of Appeals
described the factual basis for those convictions accordingly:
The offenses occurred on June 16, 1997, the
fifteenth birthday of N.V., the complaining
witness. N.V. testified that on that afternoon,
she was in her family’s apartment with one of
her friends when she went to the door in
response to a knock. She observed a man,
whom she identified later as Sanchez-Rengifo,
wearing a paint-splattered blue and white
striped shirt and blue pants, an orange and
white “Home Depot” hat, and brown paint-
splattered boots. She testified that the man told

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No. 14-2876 3
her that he was there to make repairs in the
apartment and assured her that her mother
knew about the work. N.V. admitted Sanchez-
Rengifo into the apartment where he looked
around the apartment, including her mother's
bedroom. N.V. pointed out a problem with the
bars on her bedroom window. Sanchez-
Rengifo told N.V. that he would return, and
left the apartment. Soon afterwards, N.V.’s
friend left the apartment.
Within minutes, Sanchez-Rengifo returned,
and N.V. let him in. N.V. was talking on the
telephone at the time, and Sanchez-Rengifo
asked her to end the conversation so that they
could talk about the repairs. N.V. complied,
walked into her mother’s bedroom, and as she
turned around, she saw that Sanchez-Rengifo
was holding a knife. He warned her that he
would kill her if she made any noise. He then
ordered her to sit on her mother's bed and to
remove her clothes, which she did. For the next
two hours approximately, Sanchez-Rengifo
forced N.V. to engage in various sexual acts.
Sanchez-Rengifo v. United States, 815 A.2d 351, 353 (D.C.
2002). Following his conviction, Mr. Sanchez-Rengifo was
sentenced to life without parole on the first-degree child
sexual abuse counts and to shorter sentences on the
remaining counts of conviction, with all of the sentences to
be served concurrently.
While his direct appeal was pending, he challenged his
convictions under District of Columbia Code § 23-110,

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4 No. 14-2876
arguing that his trial counsel was constitutionally ineffective
for, among other reasons, failing to call an independent
DNA expert. The trial court denied his motion for post-
conviction relief.
Mr. Sanchez-Rengifo appealed his convictions and
sentences, as well as the denial of his post-conviction
motion. On appeal, he argued “that his convictions for first
and second-degree child sexual abuse while armed merge
because the criminal conduct involved constitutes one
continuous sexual assault,” and, therefore, his convictions
for these offenses violated the Double Jeopardy Clause of the
Constitution. Sanchez-Rengifo, 815 A.2d at 353. He
maintained that the trial court erred in denying his post-trial
motion. In this respect, he maintained that “his trial
counsel[] was ineffective because he (1) failed to call or
consult an independent DNA expert, and (2) failed to
consult an independent fingerprint expert.” Id. at 359. The
District of Columbia Court of Appeals affirmed
Mr. Sanchez-Rengifo’s conviction and sentence and also
upheld the denial of his motion to vacate under § 23-110. See
id. at 362.
B.
Mr. Sanchez-Rengifo was assigned to serve his sentence
in the United States Penitentiary in Terre Haute, and, in
2014, he filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241 in the Southern District of Indiana. In his
petition, he argued that he was entitled to relief because the
prosecution had adduced insufficient evidence of his guilt at
trial; specifically, there was no DNA evidence to corroborate

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No. 14-2876 5
the victim’s identification of him as the perpetrator.
Mr. Sanchez-Rengifo maintained that he therefore was
actually innocent of the crimes charged.
The district court denied the petition. The district court
explained that “[a] 28 U.S.C. § 2255 motion is the
presumptive means by which a federal prisoner can
challenge his conviction or sentence, although § 2241 also
supplies a basis for collateral relief under limited
circumstances,”
1 such as when a federal prisoner establishes
that § 2255 is “inadequate or ineffective to test the legality of
his detention,” 28 U.S.C. § 2255(e). Mr. Sanchez-Rengifo,
however, “ha[d] not met that burden even after he was
invited to do so.” 2 Consequently, because it determined that
Mr. Sanchez-Rengifo’s petition was legally insufficient on its
face, the district court denied the petition.
Following its denial of relief, the district court did not
indicate whether a certificate of appealability should issue,
and Mr. Sanchez-Rengifo never applied for a certificate of
appealability in this court.
II
DISCUSSION
A.
The Supreme Court recently has reaffirmed “that the
failure to obtain a [certificate of appealability]” when one is
1 R.7 at 2 (citation omitted).
2 Id. at 3.

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6 No. 14-2876
statutorily required “is jurisdictional.” Gonzalez v. Thaler, 132
S. Ct. 641, 649 (2012). Section 2253 of Title 28 makes clear that
a certificate of appealability is required when the petitioner
challenges a detention that “arises out of process issued by a
State court.” 28 U.S.C. § 2253(c)(1)(A). Despite Mr. Sanchez-
Rengifo’s incarceration in a federal penitentiary, he is not a
federal prisoner. He was convicted of his crimes in the
Superior Court of the District of Columbia and is considered
a “state” prisoner for purposes of federal habeas review. See
Madley v. United States Parole Comm'n, 278 F.3d 1306, 1309
(D.C. Cir. 2002); Eldridge v. Berkebile, No. 15-1053, 2015 WL
3953701, at *3 (10th Cir. June 30, 2015). Before he may appeal
the denial of relief by the district court, therefore, he must
obtain a certificate of appealability. See Evans v. Circuit Court
of Cook Cty., 569 F.3d 665, 666 (7th Cir. 2009) (citing 28 U.S.C.
§ 2253(c)(1)(A)).
3
If a certificate of appealability has not been issued by the
district court, and the petitioner has not sought one in this
court, we may treat a notice of appeal as a request for a
certificate of appealability. See Fed. R. App. P. 22(b)(2) (“If no
express request for a certificate is filed, the notice of appeal
constitutes a request addressed to the judges of the court of
3 The district court, it appears, mistakenly believed that a certificate of
appealability was not necessary in this case because it considered
Mr. Sanchez-Rengifo to be a federal prisoner attempting to bring his
habeas claim under 28 U.S.C. § 2241. Unlike federal prisoners proceeding
under 28 U.S.C. § 2255, federal prisoners proceeding under § 2241 need
not obtain a certificate of appealability, see 28 U.S.C. § 2253(c)(1).
However, in order to proceed under § 2241, a federal prisoner must first
show that § 2255 is inadequate or ineffective to test his detention. Mr.
Sanchez-Rengifo’s failure to make this showing was the basis for the
district court’s dismissal of his petition. See supra Part I.B.

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No. 14-2876 7
appeals.”). Moreover, when we have the benefit of briefing
by a pro se petitioner, we may look to his submissions to
inform our decision on whether a certificate of appealability
should issue. Cf. Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir.
2011) (“When a prisoner on collateral review files a pro se
brief containing non-certified claims, we will construe the
brief as an implicit request for certification.”). Consequently,
we turn to Mr. Sanchez-Rengifo’s brief to determine whether
the statutory standard for issuing a certificate of
appealability has been met.
B.
As we have noted earlier, “[a] court may grant a
certificate if the applicant makes a ‘substantial showing of
the denial of a constitutional right.’” Arredondo v. Huibregtse,
542 F.3d 1155, 1165 (7th Cir. 2008) (quoting 28 U.S.C.
§ 2253(c)(2)). We have explained that “[a]n applicant has
made a ‘substantial showing’ where ‘reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were “adequate to deserve encouragement
to proceed further.”’” Id. (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). With this standard in mind, we turn to
Mr. Sanchez-Rengifo’s claims of error.
Mr. Sanchez-Rengifo first argues that D.C. Code § 23-110
was not an adequate or effective avenue for challenging his
conviction. If a District of Columbia petitioner has been
denied relief under § 23-110, he may proceed on a federal
habeas claim only if he establishes that the § 23-110 remedy
“is inadequate or ineffective to test the legality of his

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8 No. 14-2876
detention.” D.C. Code § 23-110(g). The district court did not
assess whether Mr. Sanchez-Rengifo had met this
requirement, but instead evaluated Mr. Sanchez-Rengifo’s
petition according to the statutory standard for petitions
filed by federal prisoners seeking to invoke § 2241—whether
28 U.S.C. § 2255 is “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e).
4 There is no
question, therefore, that the district court misapprehended
the statutory standard that provides the procedural
mechanism for asserting a constitutional violation.
However, such an error, standing alone, does not
constitute “a substantial showing of the denial of a
constitutional right” required for issuance of a certificate of
appealability. 28 U.S.C. § 2253(c)(2). Although a court may
include a question of procedure within a certificate of
appealability, there also must be a substantial constitutional
question on which the certificate is premised. See West v.
Schneiter, 485 F.3d 393, 395 (7th Cir. 2009) (citing Slack, 529
U.S. at 483–85). The fact that the district court applied the
incorrect statutory standard in determining whether Mr.
Sanchez-Rengifo could pursue his federal habeas claim,
without more, does not satisfy this requirement.
When we turn to Mr. Sanchez-Rengifo’s substantive
contentions in his brief, we cannot find a substantial
constitutional question upon which to premise the grant of a
certificate of appealability. He argues that his conviction
violated the Due Process Clause because there was no DNA
evidence to corroborate the victim’s unreliable identification
of him as the perpetrator. We have held, however, that
4 See supra note 3.

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No. 14-2876 9
“[c]redible testimony of one identification witness is
sufficient to support a conviction.” United States ex rel.
Wandick v. Chrans, 869 F.2d 1084, 1089 (7th Cir. 1989). The
jury was entitled to believe the victim even in the absence of
conclusive physical evidence.
Mr. Sanchez-Rengifo also takes issue with the victim’s
identification of him as the perpetrator. An identification
card with Mr. Sanchez-Rengifo’s picture on it was found in
the victim’s mother’s bedroom, where the rape occurred.
According to Mr. Sanchez-Rengifo,
[o]fficers then displayed the card to the
victim and inquired if that was her assailant.
The victim gave a vague and inconclusive
response. However, by the time of the jury
trial, the victim’s story had changed to the
extent that she was now certain that Humberto
Sanchez-Rengifo was the same person as the
one depicted in the expired picture
identification card.[5]
Mr. Sanchez-Rengifo does not identify any portions of the
state-court record to support his assertion that the officers
displayed the identification card to the victim. Moreover, the
excerpts of the trial transcript appended to Mr. Sanchez-
Rengifo’s brief do not substantiate his claim. Instead, the
victim testified that her mother was the person who both
found the identification card and asked her if the man
pictured on the identification card was her attacker. There is
5 Appellant’s Br. 27–28.

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10 No. 14-2876
no basis, therefore, for the assertion that the police
participated in a suggestive “show up” procedure.
When law enforcement have not arranged for the
suggestive circumstances resulting in the identification, due
process usually is satisfied by the “safeguards built into our
adversary system that caution juries against placing undue
weight on eyewitness testimony of questionable reliability.”
Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012). There is no
evidence in the record that these safeguards were not
adequate here; indeed, the transcript pages suggest that the
victim was cross-examined regarding her identification at
multiple points during the trial. See id. (identifying the “right
to confront the eyewitness” as one of the safeguards of the
adversary system).
Finally, Mr. Sanchez-Rengifo contends “that it violated
the Double Jeopardy Clause to convict and sentence him for
multiple offenses that were committed during one
continuous act of rape.” 6 “Multiplicity is the charging of a
single offense in separate counts of an indictment. This
exposes a defendant to the threat of receiving multiple
punishment[s] for the same offense.” United States v.
Allender, 62 F.3d 909, 912 (7th Cir. 1995) (citation omitted).
However, “the Double Jeopardy Clause does not preclude
the imposition of multiple punishments for the same offense,
so long as the legislature has authorized cumulative
punishment.” McCloud v. Deppisch, 409 F.3d 869, 873 (7th Cir.
2005). “In order to determine whether a given indictment
contains multiplicitous counts, we look to the applicable
criminal statute to see what the allowable ‘unit’ of
6 Id. at 32.

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No. 14-2876 11
prosecution is—the minimum amount of activity for which
criminal liability attaches.” Allender, 62 F.3d at 912; see also,
e.g., United States v. Pires, 642 F.3d 1, 15 (1st Cir. 2011)
(“When an indictment includes multiple counts charging a
violation of the same statutory provision and a claim of
multiplicity is raised, an inquiring court must determine
whether the facts undergirding each count can be treated as
a distinct unit of prosecution.”). In short, “the question of
what punishments are constitutionally permissible is not
different from the question of what punishments the
Legislative Branch intended to be imposed.” Albernaz v.
United States, 450 U.S. 333, 344 (1981). Where the legislature
intended “to impose multiple punishments, imposition of
such sentences does not violate the Constitution.” Id. “Thus,
determining the permissibility of imposing multiple
punishments for one course of conduct is a matter of
discerning the legislature’s intent.” United States v. Patel, 370
F.3d 108, 114 (1st Cir. 2004). The same rule applies to
sentences imposed for violations of state law. See Missouri v.
Hunter, 459 U.S. 359, 368–69 (1983).
In this case, the District of Columbia Court of Appeals
recounted the various forms of sexual abuse that
Mr. Sanchez-Rengifo inflicted upon his victim.
7 Mr. Sanchez-
7 The court stated:
After threatening N.V. while armed with the knife,
Sanchez-Rengifo ordered her to sit on the bed and
remove her shirt and bra. He sat beside her and began
licking her breasts. He then told her to remove her pants,
shoes and panties. Sanchez-Rengifo unzipped his pants
and rubbed his penis back and forth before instructing
N.V. to lay on her back. When he inserted his penis into

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12 No. 14-2876
Rengifo was charged with three separate counts of first-
degree child sexual abuse under D.C. Code §§ 22-4108 and
22-4101(8)
8 —each relating to a distinct, prohibited, sexual
act—and one count of second-degree child sexual abuse
her vulva, she screamed in pain, and he told her to shut
up and again threatened to kill her. Sanchez-Rengifo
then licked her breasts again before forcing the child to
perform fellatio. He also attempted to have anal
intercourse with her, and when he was not successful, he
ordered her to change positions so he could try vaginal
penetration again. He then “stopped” and “started
licking [her] vagina.” After another failed attempt to
penetrate her anus with his penis, he penetrated her
vulva again. N.V. testified that he held the knife toward
her during each of the assaults and threatened
repeatedly to kill her.
Sanchez-Rengifo v. United States, 815 A.2d 351, 356–57 (D.C. 2002).
8 D.C. Code § 22-4108 (1981) provided:
Whoever, being at least 4 years older than a child,
engages in a sexual act with that child or causes that
child to engage in a sexual act shall be imprisoned for
any term of years or for life and, in addition, may be
fined an amount not to exceed $250,000.
A “[s]exual act” was defined as
(A) The penetration, however slight, of the anus or vulva
of another by a penis; (B) Contact between the mouth
and the penis, the mouth and the vulva, or the mouth
and the anus; or (C) The penetration, however slight, of
the anus or vulva by a hand or finger or by any object,
with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.
D.C. Code § 22-4101(8) (1981).

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No. 14-2876 13
under D.C. Code §§ 22-4109 and 22-4101(9), 9 based upon
other sexual contact. See Sanchez-Rengifo, 815 A.2d at 355 n.6.
As explained by the D.C. Court of Appeals, both the
language of the statute, as well as the legislative history, lead
to the conclusion that the legislature meant to punish each of
these acts separately:
These statutory provisions enumerate
separate and discrete sex acts punishable when
perpetrated upon a minor child. The legislative
history indicates that in recommending the
enactment of the “Anti-Sexual Abuse Act of
1994,” which includes these provisions, the
Council of the District of Columbia intended to
“make the laws governing sexually abusive
conduct more inclusive, flexible and reflective
of the broad range of abusive conduct which
does in fact occur....” Council Of The District
Of Columbia, Report Of The Committee On
The Judiciary, Bill 10-87, The “Anti-Sexual
Abuse Act of 1994,” p. 1 (1994). These discrete
acts of abusive conduct include, as charged
here, and as the evidence shows: (1) “sexual
9 D.C. Code § 22-4109 (1981) provided: “Whoever, being at least 4 years
older than a child, engages in sexual contact with that child or causes
that child to engage in sexual contact shall be imprisoned for not more
than 10 years and, in addition, may be fined in an amount not to exceed
$100,000.” “Sexual contact” was defined as “the touching with any
clothed or unclothed body part or any object, either directly or through
the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks
of any person with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.” D.C. Code § 22-4101(9)
(1981).

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14 No. 14-2876
contact,” consisting of Sanchez-Rengifo placing
his mouth on N.V.’s breast, see D.C. Code § 22-
4101(9); (2) “sexual acts,” consisting of the
penetration of the vulva of another by a penis,
see D.C. Code 22-4101(8)(A) and “[c]ontact
between the mouth and the penis [and] “the
mouth and the vulva...,” see D.C. Code § 22-
4101(8)(B). For each of these acts, different
interests are protected; different acts are made
criminal; and, some different elements of proof
are required. Thus, it appears that the
legislature, at least, viewed each of these
methods of committing first and second-degree
child sexual abuse as different in nature and
character.
Id. at 357 (alterations in original). Because the legislature
defined the unit of punishment as each act of child sexual
abuse, Mr. Sanchez-Rengifo did not suffer multiple
punishments for the same crime, and, consequently, his
sentences did not run afoul of the Double Jeopardy Clause.
Put simply, he raises no substantial constitutional question
that can serve as a predicate for a certificate of appealability,
and we can take no further action in this matter. 10
10 If a substantial constitutional question were presented and we could
issue a certificate of appealability, the proper course would be to vacate
the judgment of the district court and remand the case to the district
court to determine whether the conditions for filing an action under 28
U.S.C. § 2254 were met. We have no occasion in this case to determine
whether all those prerequisites have been met. See Rumsfeld v. Padilla, 542
U.S. 426, 442 (2004) (“The plain language of the habeas statute thus
confirms the general rule that for core habeas petitions challenging

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No. 14-2876 15
Conclusion
Mr. Sanchez-Rengifo has not raised a substantial
showing that his due process rights or his protections
against double jeopardy were violated. Consequently, we
deny Mr. Sanchez-Rengifo a certificate of appealability and
dismiss his appeal for want of jurisdiction.
APPEAL DISMISSED
present physical confinement, jurisdiction lies in only one district: the
district of confinement.”); Stokes v. United States Parole Comm’n, 374 F.3d
1235, 1239 (D.C. Cir. 2014) (“That Stokes had been arrested and convicted
in D.C. in 1987 and that he served a portion of his prison term in a D.C.
correctional facility are of no moment under the immediate custodian
rule.”). The district court also would be required to determine whether
the provisions of D.C. Code § 23-110 were “inadequate or ineffective to
test the legality of his detention.” D.C. Code § 23-110(g).

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