Rivera v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bennie C. Rivera
v. 	Case No. 21-cv-234-JL
Robert Hazlewood, Warden, FCI-Berlin
REPORT AND RECOMMENDATION
Bennie C. Rivera, an inmate at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI-Berlin”), has filed a
petition for a writ of habeas corpus (Doc. No. 1) pursuant to 28
U.S.C. § 2241, seeking this court’s review of the validity of
his drug trafficking conviction, following a jury trial in 2008
in United States v. Rivera, No. 6:04-cr-00104-JA-LRH-2 (M.D.
Fla.). 	The petition is before this court to determine whether
the claims upon which Mr. Rivera seeks relief are 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) (allowing application of § 2254 Rules to
any habeas corpus petition).
Failure to Pay Filing Fee
Mr. Rivera filed this case without paying a filing fee.
This court’s March 23, 2021 Order (Doc. No. 2) directed him to
pay the $5.00 filing fee or to file a motion to proceed in forma
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pauperis. 	Mr. Rivera has done neither, despite receiving that
notice, which stated that no action would be taken on his claims
unless he paid the fee or filed a motion to proceed in forma
pauperis. 	The court need not decide at this time, however,
whether Mr. Rivera’s petition should be dismissed because of his
inattention to that requirement, as, for reasons stated below,
the matter is properly dismissed for lack of jurisdiction.
Background
Mr. Rivera is presently serving a 240-month sentence for
conspiracy to possess with intent to distribute heroin, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), and
846, and possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a), (b)(1)(A). 	United States v.
Rivera, 365 F. App’x 200, 200 (11th Cir. 2010); see also Pet.
(Doc. No. 1-1, at 4). 	He previously filed a post-conviction
motion in his criminal case, asserting claims of violations of
his federal rights, which the court in the Middle District of
Florida denied. 	See generally Rivera v. United States, 572 F.
App’x 878, 880 (11th Cir. 2014) (affirming order denying motion
filed under 28 U.S.C. § 2255). 	In his § 2241 petition here, Mr.
Rivera seeks an order of release based upon his arguments that
the Controlled Substances Act does not apply to him; rather,
referring to sections of the Federal Food, Drug, and Cosmetic
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Act that are not cited in his judgment of conviction, see Pet.
(Doc. No. 1-1, at 4), he argues that the pertinent criminal
enforcement provisions of the Controlled Substances Act apply
only to licensed practitioners (e.g., pharmacists,
investigators, dentists, doctors, veterinarians, see 21 U.S.C.
§ 802(21) (definition of “practitioner”)) involved in making,
distributing, or dispensing drugs -- a class of professionals to
which he states he does not belong.
Jurisdictional Issues
Claims raised in a post-conviction pleading, asserting the
inapplicability of the pertinent federal criminal laws or
otherwise challenging the validity of a federal conviction,
generally fall within the exclusive jurisdiction of the court
where the petitioner was convicted and sentenced, pursuant to 28
U.S.C. § 2255. 	Inmates are limited to filing only one such
motion under § 2255, unless the court of appeals has granted the
inmate leave to file a successive § 2255 motion. 	See 28 U.S.C.
§§ 2244(a), 2255(h).
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
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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).
Relief under the savings clause is not available simply
because a petitioner cannot file a successive § 2255 motion.
Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008).
Instead, section 2255’s “adequacy and effectiveness must be
judged ex ante.” 	Id. (“post-conviction relief can be termed
‘inadequate’ or ‘ineffective’ only when, in a particular case,
the configuration of section 2255 is such ‘as to deny a
convicted defendant any opportunity for judicial rectification’”
(citations omitted)). 	Courts have exercised savings clause
jurisdiction where the Supreme Court has overturned the
interpretation of the statute under which the petitioner was
convicted so that he or she is no longer guilty of a crime under
the new interpretation. 	See Bailey v. Warden, No. 20-CV-540-JL,
2020 WL 5898790, at *3, 2020 U.S. Dist. LEXIS 184899, at *6
(D.N.H. Sept. 18, 2020) (citing cases), R&R approved, 2020 WL
5894475, 2020 U.S. Dist. LEXIS 184043 (D.N.H. Oct. 2, 2020).
Mr. Rivera’s argument that the Controlled Substances Act
did not criminalize his acts is based on his own legal theories
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and does not depend on any cases or other authorities post-
dating either his direct appeal or the post-conviction motions
he filed in his criminal case. 	The claims and arguments
asserted in the § 2241 petition were all available to Mr. Rivera
at the time he litigated those proceedings; he points to no
pertinent authority that either previously foreclosed those
arguments, or which altered the applicable criminal law after he
filed his first § 2255 motion. 	Cf. Trenkler, 536 F.3d at 99
(§ 2241 petitioner’s previous failure to avail himself of
opportunity to raise same claims in his first § 2255 motion “in
no way detracts from [the] adequacy and effectiveness” of that
remedy). 	Nothing before this court suggests that there has been
any miscarriage of justice. 	Cf. Correa v. United States, No. 92
Civ. 6637 (PKL), 1992 U.S. Dist. LEXIS 18594, at *16, 1992 WL
380555, at *5 (S.D.N.Y. Dec. 4, 1992) (“it is indisputable that
[21 U.S.C. § 841] applies to unregistered persons,” and not just
physicians who are registered). 	As Mr. Rivera has not shown
that the remedy available under § 2255 has been inadequate or
ineffective in his case, Mr. Rivera’s § 2241 petition is
properly dismissed for lack of savings clause jurisdiction.
Conclusion
For the foregoing reasons, the magistrate judge recommends
that:
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(1) the district judge should dismiss Mr. Rivera’s § 2241
petition for lack of jurisdiction; and
(2) the district judge should direct the clerk to enter
judgment and close this case.
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).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 12, 2021
cc: 	Bennie C. Rivera, pro se
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