Lorfils v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lynden Garfield Lorfils
v. 	Case No. 19-cv-748-PB
Robert Hazlewood, Warden, FCI-Berlin
REPORT AND RECOMMENDATION
Lynden Garfield Lorfils, an inmate at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI-
Berlin”), has petitioned for a writ of habeas corpus (Doc. No.
1) pursuant to 28 U.S.C. § 2241. 	The matter is before this
court for preliminary review to determine whether the petition
is facially valid and may proceed. 	See 28 U.S.C. § 2243; LR
4.3(d)(4)(A); Rule 4 of the Rules Governing Section 2254 Cases
(“§ 2254 Rules”); see also § 2254 Rule 1(b) (§ 2254 Rules may
apply to § 2241 petitions).
Background
Mr. Lorfils’s pertinent case history, culminating in a
judgment of conviction and a sentence imposed in 2002, is
summarized in an unpublished November 2019 decision of the
Eleventh Circuit Court of Appeals:
A grand jury charged [petitioner] by superseding
indictment with two counts of armed bank robbery, in
violation of 18 U.S.C. §§ 2113(a), (d), and 2 (Counts
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2 and 4); and two counts of use and possession of a
firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 3
and 5). 	The armed bank robbery charges alleged that
[petitioner] had taken “by force, violence, and
intimidation” certain amounts of money from bank
employees, and in doing so, had endangered the lives
of others through his use of a firearm. 	[T]he
indictment stated that the § 924(c) charges in Counts
3 and 5 were predicated on the armed bank robbery
charges in Counts 2 and 4, respectively. 	[Petitioner]
pled guilty to Counts 2 through 5, and the district
court sentenced him to 37 months’ imprisonment as to
Counts 2 and 4, to be served concurrently; 84 months’
imprisonment as to Count 3, to be served
consecutively; and 300 months’ imprisonment as to
Count 5, to be served consecutively.
In re Lorfils, No. 19-14289-B, 2019 U.S. App. LEXIS 34187, at
*2-3 (11th Cir. Nov. 15, 2019); see also United States v.
Lorfils, No. 02-cr-60155-WPD (S.D. Fla. Dec. 9, 2002) (ECF No.
29).
The statute providing the basis for the sentence imposed on
Counts 3 and 5, namely, 18 U.S.C. § 924(c), “authorizes
heightened criminal penalties for using or carrying a firearm
‘during and in relation to,’ or possessing a firearm ‘in
furtherance of,’ any federal ‘crime of violence’” or drug
trafficking crime. 	United States v. Davis, 139 S. Ct. 2319,
2324 (2019) (quoting § 924(c)(1)(A)).
Violators of § 924(c) face a mandatory minimum
sentence of five years in prison, over and above any
sentence they receive for the underlying crime of
violence or drug trafficking crime. 	The minimum
sentence rises to 7 years if the defendant brandishes
the firearm and 10 years if he discharges it. . . .
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And repeat violations of § 924(c) carry a minimum
sentence of 25 years.
Davis, 139 S. Ct. at 2324. 	At the time of Mr. Lorfils’s
indictment, conviction, and sentencing, “a defendant convicted
of two § 924(c) violations in a single prosecution faced a 25-
year minimum for the second violation.” 	Davis, 139 S. Ct. at
2324 n.1 (citing Deal v. United States, 508 U.S. 129, 132
(1993); § 1(a)(1), 112 Stat. 3469). 	“In 2018, Congress changed
the law so that, going forward, only a second § 924(c) violation
committed ‘after a prior [§ 924(c)] conviction . . . has become
final’ will trigger the 25-year minimum.” 	Davis, 139 S. Ct. at
2324 n.1 (quoting First Step Act, Pub. L. 115-391, § 403(a), 132
Stat. 5221, codified at 18 U.S.C. § 924(c)(1)(C)(i)).
Mr. Lorfils’s § 2241 petition filed here (Doc. No. 1)
asserts that his sentences on Counts 2, 3, and 4 were completed
in 2012, and since then, he has been serving the 300-month
sentence imposed on Count 5. 	Mr. Lorfils claims that Congress
clarified through its enactment of the First Step Act that his
two § 924(c) violations (Counts 3 and 5) cannot support his 25-
year mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(C)
since both convictions arose from the same prosecution. 	See
Pet. (Doc. No. 1), at 3. 	He “seeks immediate release because,”
he claims, “he is wrongfully imprisoned for an act the law has
never made criminal.” 	Pet. (Doc. No. 1), at 1.
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Discussion
Pursuant to 28 U.S.C. § 2255, the trial court generally has
exclusive jurisdiction over a petitioner’s post-conviction
motions challenging the validity of his 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 incarceration. 	See United States v.
Barrett, 178 F.3d 34, 49 (1st Cir. 1999). 	The savings clause
provides, in pertinent part, as follows:
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). 	Mr. Lorfils, an FCI-Berlin inmate, seeks
to invoke this court’s savings clause jurisdiction under
§ 2255(e).
While the First Circuit has not provided examples of all
circumstances in which savings clause jurisdiction might arise,
the court has clarified that § 2255’s “adequacy and
effectiveness must be judged ex ante.” 	Trenkler v. United
States, 536 F.3d 85, 99 (1st Cir. 2008). 	“[P]ost-conviction
relief can be termed ‘inadequate’ or ‘ineffective’” for purposes
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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.’”1 	Trenkler, 536 F.3d at 99 (citation omitted).
Courts have allowed access to the savings clause in only
“rare and exceptional circumstances, such as those in which
strict adherence” to the statutory limits on access to relief
under section 2255 “would result in a ‘complete miscarriage of
justice.’” 	Id. (citation omitted). 	This court thus has savings
clause jurisdiction if the configuration of § 2255 has
effectively denied Mr. Lorfils any opportunity for judicial
review, and manifest injustice has resulted. 	Id.
In general, in “collateral-review jurisprudence, the term
‘miscarriage of justice’ means that the defendant is actually
innocent.” 	United States v. Olano, 507 U.S. 725, 736 (1993);
see also Trenkler, 536 F.3d at 99 (“Most courts have required a
credible allegation of actual innocence to access the savings
clause.”). 	Actual innocence means factual innocence, not mere
legal insufficiency. 	Bousley v. United States, 523 U.S. 614,
1In Sustache-Rivera v. United States, the First Circuit
noted that savings clause jurisdiction has been found in cases
where petitioners have asserted statutory interpretation claims
previously unavailable to them, after new Supreme Court
precedent has changed the law in the circuit and narrowed the
scope of a criminal statute in a manner that would have rendered
them not guilty of the offense of which they were convicted.
221 F.3d 8, 16 & n.14 (1st Cir. 2000) (citing cases).
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623 (1998). 	A petitioner “asserting innocence as a gateway
. . . must establish that, in light of new evidence, ‘it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.’” 	House v. Bell,
547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)).
Mr. Lorfils argues that this court has savings clause
jurisdiction since he could not raise the same claim he presents
here until 2018 when Congress clarified that the Supreme Court
in Deal was mistaken in concluding that a single prosecution
could result in the two convictions needed to impose an enhanced
minimum sentence under section 924(c). 	That argument, however,
is based on a mistaken premise; Congress’s amendment of section
924(c)(1) changed the law, but that change did not render
invalid any judgments in cases like Mr. Lorfils’s, predating the
First Step Act.
That Congress altered the statutory language alone
provides at least some hint the amendment changed the
law rather than clarified what the law always
meant. . . . [The] Act’s plain language confirms . . .
that the Act’s changes do not apply retrospectively.
Congress itself addresses the Act’s applicability to
pending cases. 	See First Step Act, § 403(b). 	That
subsection states that the Act’s amendment to § 924(c)
“shall apply to any offense that was committed before
the date of enactment of this Act, if a sentence for
the offense has not been imposed as of such date of
enactment.” 	Id. 	. . . Defendants sentenced after
December 21, 2018, may benefit from Congress’s
amendment to § 924(c), but defendants sentenced before
that date cannot.
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United States v. Richardson, 948 F.3d 733, 748 (6th Cir. 2020)
(citations omitted).
Focusing on the key question of whether there is any
manifest injustice in Mr. Lorfils’s case, this court observes
that Congress did not change the substantive criminal law upon
which Mr. Lorfils’s sentence was based. 	It is “every bit as
criminal to possess a firearm during a crime of violence today
as it was before the First Step Act became law.” 	Richardson,
948 F.3d at 752. 	Mr. Lorfils offers no new evidence to show
that he was in fact not in possession of a firearm during or in
relation to multiple crimes of violence. 	And he does not
contend that the sentence he received exceeded the statutory
maximum. 	Mr. Lorfils has thus not demonstrated the
prerequisites to this court’s finding that it has savings clause
jurisdiction over his claim, and he has not shown that his claim
warrants relief on the merits. 	Accordingly, the district judge
should dismiss Mr. Lorfils’s section 2241 petition.
Conclusion
For the foregoing reasons, the district judge should
dismiss Lorfils’s § 2241 petition. 	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
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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).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 20, 2020
cc: 	Lynden Garfield Lorfils, pro se
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