Reed v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ceron Montrell Reed
v. 	Case No. 17-cv-103-PB
Robert Hazlewood, Warden, FCI Berlin
REPORT AND RECOMMENDATION
Ceron Montrell Reed, who was an inmate at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI-Berlin”)
when he filed this action, has petitioned this court for a writ
of habeas corpus (Doc. No. 1), pursuant to 28 U.S.C. § 2241.
Before the court is the respondent FCI-Berlin Warden’s motion to
dismiss (Doc. No. 10) for lack of jurisdiction. 	Reed objects to
the motion to dismiss. 	See Doc. No. 15.
Background
A summary of the facts and procedural history underlying
the § 2241 petition is provided in a September 15, 2015 Order
issued in Reed’s federal criminal case in the Western District
of North Carolina. 	Reed attached that Order as an exhibit to
the petition here, and it is also available on LEXIS and
Westlaw. 	See Doc. No. 1, at 17-24; see also Reed v. United
States, Nos. 3:12-cv-377 (“§ 2255 Order”), 2015 WL 5431045, 2015
U.S. Dist. LEXIS 122683 (W.D.N.C. Sept. 15, 2015)). 	Summarized
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below are facts pertinent to the § 2241 petition before this
court.
Reed was indicted in the Western District of North Carolina
in December 2005 for carjacking and aiding/abetting, in
violation of 18 U.S.C. §§ 2, 2119 (Count One); using, carrying,
brandishing, and discharging a firearm during and in relation to
that crime of violence, and aiding and abetting, in violation of
18 U.S.C. §§ 2, 924(c)(l)(A) (Count Two); and possessing a
firearm as a felon, in violation of 18 U.S.C. § 922(g)(l) (Count
Three). 	§ 2255 Order, 2015 WL 5431045, at *1, 2015 U.S. Dist.
LEXIS 122683, at *1-*2. 	Reed pleaded guilty to those charges in
June 2006. 	See id., 2015 WL 5431045, at *1, 2015 U.S. Dist.
LEXIS 122683, at *2; see also June 1, 2006 Entry & Acceptance of
Guilty Plea, United States v. Reed, No. 3:05-cr-419-RJC-DCK
(W.D.N.C.) (“Criminal Case”) (ECF No. 29).
Reed’s Presentence Report identified two prior North
Carolina drug offense convictions in Reed’s criminal history,
one that had resulted in Reed receiving an eight to ten month
sentence, and the other that resulted in Reed receiving a
sentence of ten to thirteen months. 	See § 2255 Order, 2015 WL
5431045, at *1 & n.3, 2015 U.S. Dist. LEXIS 122683, at *2 & n.3.
Both of those prior convictions were deemed to be predicate
controlled substance offenses for purposes of qualifying Reed
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for career offender designation under the advisory United States
Sentencing Guidelines (“Guidelines”), U.S.S.G. § 4B1.1. 1 	See
§ 2255 Order, 2015 WL 5431045, at *1, 2015 U.S. Dist. LEXIS
122683, at *2. 	Reed was sentenced in 2006 to an aggregate term
of 262 months, consisting of a total of 142 months as a career
offender on Counts One and Three, and a consecutive 120 months
on Count Two. 	See United States v. Reed, 239 F. App’x 808, 808
(4th Cir. 2007) (“Reed”); see also § 2255 Motion, 2015 WL
5431045, at *1 n.2, 2015 U.S. Dist. LEXIS 122683, at *2 n.2.
The sentencing court later described Reed’s sentence as being in
the “low end of the advisory guideline range,” under U.S.S.G.
§ 4B1.1(c)(3). 	§ 2255 Order, 2015 WL 5431045, at *1, 2015 U.S.
Dist. LEXIS 122683, at *2 (footnote omitted). 	Reed
unsuccessfully appealed his conviction and sentence to the
Fourth Circuit. 	See Reed, 239 F. App’x at 808-09.
Four years later, in June 2012, Reed filed a motion in his
criminal case under 28 U.S.C. § 2255, arguing, in pertinent
part, that one of his prior state convictions, for which he had
been sentenced to a term of eight to ten months, no longer
1 U.S.S.G. § 4B1.1(a) provides, in pertinent part, that a
defendant is a “career offender if . . . the defendant has at
least two prior felony convictions of either a crime of violence
or a controlled substance offense.” 	Id. 	A “controlled
substance offense” is a drug offense “under federal or state
law, punishable by imprisonment for a term exceeding one year.”
Id. § 4B1.2(b).
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qualified as a felony controlled substances conviction, and thus
could not serve as one of the two requisite prior convictions
for a career offender designation, in light of a change in
Fourth Circuit law effected by United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc), which post-dated Reed’s
conviction. 	See Simmons, 649 F.3d at 248-49 (where sentences
imposed for prior North Carolina convictions were less than one
year, those convictions could not be counted as predicate felony
drug convictions under the Controlled Substances Act’s ten-year
mandatory minimum sentence requirement, 21 U.S.C.
§ 841(b)(1)(B)(vii)). 	Because Reed had not faced a sentence of
more than ten months on one of the prior state convictions, Reed
argued that he was actually innocent of being a career offender
under the advisory Guidelines. 	See Feb. 7, 2013 Supp. Mot. to
Vacate, Reed v. United States, No. 3:12-cv-00377-RJC (W.D.N.C.)
(ECF No. 5).
In denying Reed’s § 2255 motion and rejecting his Simmons
claim, the Western District of North Carolina made two
independently dispositive findings: (1) the § 2255 motion was
untimely, and (2) collateral relief under § 2255 could not be
premised on a Simmons error. 	See § 2255 Order, 2015 WL 5431045,
at *2 & n.5, 2015 U.S. Dist. LEXIS 122683, at *2-*3 & n.5
(citing, inter alia, United States v. Foote, 784 F.3d 931 (4th
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Cir. 2015) (Simmons challenge to career offender designation was
not cognizable in § 2255 motion, where none of petitioner’s
convictions had been vacated, he had been sentenced under
advisory Guidelines, and his sentence fell within permissible
statutory range); Whiteside v. United States, 775 F.3d 180 (4th
Cir. 2014) (en banc) (statute of limitations)). 	Reed thereafter
filed the instant § 2241 petition, again asserting a Simmons
claim and arguing that he is actually innocent of being a career
offender under the advisory Guidelines.
Discussion
I. 	Savings Clause Jurisdiction
Pursuant to 28 U.S.C. § 2255, the court where the federal
prosecution occurred generally has exclusive jurisdiction over a
federal inmate’s post-conviction motions challenging the
validity of his or her federal conviction or sentence. 	Section
2255(e), known as the “savings clause,” preserves a limited role
for the court in the district where a federal inmate is in
prison to consider a § 2241 petition challenging the validity of
his or her detention. 	See United States v. Barrett, 178 F.3d
34, 49 (1st Cir. 1999). 	Reed filed his § 2241 petition in the
District of New Hampshire while he was an FCI-Berlin inmate,
seeking to invoke this court’s “savings clause” jurisdiction
under 28 U.S.C. § 2255(e).
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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 inadequate or ineffective to test the legality of his
detention.
28 U.S.C. § 2255(e) (emphasis added).
“[P]ost-conviction relief can be termed ‘inadequate’ or
‘ineffective’” for purposes of invoking the savings clause,
“only when, in a particular case, the configuration of section
2255 is such ‘as to deny a convicted defendant any opportunity
for judicial rectification.’” 	Trenkler v. United States, 536
F.3d 85, 99 (1st Cir. 2008) (emphasis in original) (citation
omitted). 	The jurisdictional inquiry into § 2255’s “adequacy
and effectiveness must be judged ex ante.” 	Id. 	Savings clause
jurisdiction is available for petitioners asserting statutory
claims based on new binding precedent, previously unavailable to
them, that narrows the scope of a criminal statute in a manner
that would have rendered them not guilty under the narrowed
statute. 	See Sustache-Rivera v. United States, 221 F.3d 8, 16
n.14 (1st Cir. 2000) (citing cases allowing § 2241 petitions to
be filed after Bailey v. United States, 516 U.S. 137 (1995),
narrowed the definition of “use” of firearm in 18 U.S.C.
§ 924(c)(1)).
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II. 	Guidelines Career Offender Claim
The respondent Warden moves to dismiss Reed’s petition
challenging the career offender designation in his case on the
basis that this court lacks savings clause jurisdiction. 	The
government’s argument is that Reed has not demonstrated any
“manifest injustice” in his case, given that his advisory
Guidelines sentence falls below the statutory maximum for his
federal conviction. 	Reed maintains that he is innocent of being
a career offender, and argues that his sentence is fundamentally
unfair. 	He contends that it is based on a misapplication of the
career offender provision in his case, and that the
misapplication of § 4B1.1 improperly raised his criminal history
score, effectively elevating the starting point for the district
court’s exercise of sentencing discretion in his case.
Even if this court were to conclude that Simmons is new
binding precedent that changed the law in the Fourth Circuit as
to whether Reed’s North Carolina conviction could qualify as a
predicate controlled substance conviction under the advisory
Guidelines, Reed’s claim challenging his career offender
designation is not the proper subject of this court’s exercise
of savings clause jurisdiction. 	Savings clause jurisdiction may
arise in “rare and exceptional circumstances,” where § 2255
relief is unavailable because of that statute’s gatekeeping
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provisions, although such circumstances are generally limited to
cases involving “a credible allegation of actual innocence,”
Trenkler, 536 F.3d at 99 (citation omitted). 	Actual innocence
in that context means factual innocence, not mere legal
insufficiency. 	See Bousley v. United States, 523 U.S. 614, 623
(1998); United States v. Olano, 507 U.S. 725, 736 (1993) (in
“collateral-review jurisprudence, the term ‘miscarriage of
justice’ means that the defendant is actually innocent”).
Reed does not challenge the validity of his two prior drug
offense convictions, and he does not assert his factual
innocence of the underlying state convictions. 	Nor does he
assert that his federal sentence exceeded the statutory maximum.
Reed’s claim here is that, as a matter of law, one of his prior
convictions can no longer be counted as a predicate controlled
substances conviction for purposes of the advisory Guidelines,
in light of Simmons. 	That claim is properly characterized as a
misapplication of the Guidelines claim, namely, that the court
that sentenced him erred as a matter of law in applying the
Guidelines to undisputed underlying facts, by designating Reed
as a “career offender” based on a conviction for an offense that
the court erroneously held was a controlled substance offense.
See Cuevas v. United States, 778 F.3d 267, 270-71 (1st Cir.
2015) (distinguishing such “misapplication of the advisory
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guidelines” claims from other claims that may provide cognizable
bases for collateral relief under § 2255, where underlying state
convictions have been invalidated). 	Reed’s claim challenges the
legal insufficiency of the career offender designation in his
case, and is not a claim of factual innocence. 	As Reed’s
sentence did not exceed the statutory maximum for the offense at
issue, and he has neither demonstrated that any underlying
conviction has been invalidated, cf. Cuevas, 778 F.3d at 271-72,
nor demonstrated his factual innocence of the convictions that
were counted as predicates, Reed’s claims do not provide a basis
for finding a miscarriage of justice sufficient to invoke the
savings clause. 	Accordingly, the district judge should dismiss
Reed’s petition.
Conclusion
For the foregoing reasons, the district judge should grant
the respondent’s motion to dismiss (Doc. No. 10). 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen day period may be extended upon
motion. 	Failure to file objections within the specified time
waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
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______________________________
Andrea K. Johnstone
United States Magistrate Judge
February 6, 2018
cc: 	Ceron Montrell Reed, pro se
Seth R. Aframe, Esq.
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