Tobias v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Luis Tobias
v. 	Case No. 19-cv-712-LM
Robert Hazlewood, Warden,
Federal Correctional Institution,
Berlin, New Hampshire, et al.
REPORT AND RECOMMENDATION
Luis Tobias, an inmate at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”), has filed a
pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. 	He is challenging the validity of his conviction and
sentence, imposed pursuant to a federal prosecution in the
United States District Court for the Middle District of Florida.
The petition is before this court for preliminary review, to
determine whether Tobias’s claims are 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).
I. 	STANDARD OF REVIEW
Pursuant to § 2254 Rule 4, this court is required to
promptly examine any petition for habeas relief. 	Where “it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court,
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the [court] must dismiss the petition . . . .” 	§ 2254 Rule 4;
see McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal
courts are authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face . . . .”). 	When a
habeas petitioner proceeds pro se, the assertions in the
petition are construed liberally. 	See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam).
II. 	BACKGROUND
In 1995, Tobias was charged in the Middle District of
Florida with one count of conspiring to possess with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(l) and
846. 	A jury found him guilty of the charged offense, and he was
sentenced to 480 months’ imprisonment. 	See United States v.
Tobias, No. 6:95–cr–223-ACC, ECF No. 213 (M.D. Fla. July 26,
1996). 	The Eleventh Circuit affirmed Tobias’s conviction in
1998. 	See United States v. Tobias, 140 F.3d 1041 (11th Cir.
1998) (table). 	The Supreme Court denied his petition for a writ
of certiorari. 	See Tobias v. United States, 525 U.S. 861
(1998).
In the ensuing years, Tobias twice sought relief in the
sentencing court under 28 U.S.C. § 2255. 	Both of those
petitions were denied. 	In his first § 2255 petition, Tobias
asserted claims for ineffective assistance of both trial and
appellate counsel, and he also argued that he had not received
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“fair notice of the conduct that would subject him to
punishment.” 	See Tobias v. United States, 6:99-cv-01048-ACC,
ECF No. 4 (M.D. Fla. Feb. 1, 2000). 	The district court
dismissed the action with prejudice, finding that Tobias was
procedurally barred from bringing the “fair notice” claim
because he had failed to raise it in his direct appeal and that
his ineffective assistance claims failed on the merits. 	See id.
In his second § 2255 petition, Tobias argued that his
sentence was improperly enhanced, and that the indictment had
failed to allege the quantity of drugs involved in the offense.
See Tobias v. United States, 6:05-cv-01905-ACC-DAB, ECF No. 1
(M.D. Fla. Dec. 23, 2005). 	The sentencing court dismissed the
case because Tobias did not seek authorization from the court of
appeals to file a second or successive § 2255 petition. 	See
Tobias v. United States, 6:05-cv-01905-ACC-DAB, ECF No. 2 (M.D.
Fla. Jan. 18, 2006).
Four years after the denial of his second § 2255 petition,
Tobias filed in the sentencing court a petition under 28 U.S.C.
§ 2241. 	He argued that his sentence had been illegally enhanced
because the judge, not the jury, made a finding concerning the
quantity of drugs attributable to him. 	See Tobias v. Warden,
FCC Coleman-Medium, No. 5:10-CV-637-OC-10TBS, 2013 WL 4520915,
at *1 (M.D. Fla. Aug. 26, 2013). 	The court dismissed the action
for lack of jurisdiction. 	Id. at *2. 	The court reasoned that
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Tobias could not challenge his sentence under § 2241 because he
failed to demonstrate that his claim fit within the narrow
confines of the “savings clause” of § 2255(e). 	See id.
The following year, Tobias filed in the sentencing court a
motion to reopen his first § 2255 petition. 	He argued that his
ineffective-assistance-of-counsel claims had been undeveloped in
the earlier proceeding due to procedural defects and that he was
entitled to a resentencing under Alleyne v. United States, 570
U.S. 99 (2013). 	See Tobias v. United States, 6:99-cv-01048-ACC,
ECF No. 6 (M.D. Fla. Dec. 10, 2014). 	The court characterized
the motion as “an impermissible attempt to get around the
Supreme Court’s prohibition on filing second or successive
habeas petitions.” 	Id. at 1. 	Because Tobias did not
demonstrate that he had obtained authorization from the court of
appeals to file a successive § 2255 petition, the district court
denied the motion. 	Id. at 2.
After Tobias’s transfer to FCI Berlin, he filed the instant
petition, seeking to invoke this court’s jurisdiction under 28
U.S.C. § 2241. 	This petition, like his prior § 2255 and § 2241
petitions, challenges the validity of Tobias’s conviction and
sentence. 	Reproducing the substance of arguments he made in his
prior petitions, Tobias primarily relies upon Burrage v. United
States, 571 U.S. 204 (2014), in arguing that he was improperly
subjected to a heightened mandatory minimum sentence. 	As in his
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prior petitions, Tobias argues that he did not receive fair
notice during arraignment about the nature of the charges
leveled against him and that the sentencing court illegally
enhanced his sentence on the basis of a judge-made rather than a
jury finding concerning the quantity of drugs attributable to
him in his offense of conviction. 	He also argues that the
sentencing court miscalculated his total offense level and
criminal history category.
III. 	ANALYSIS
Generally, challenges to a federal conviction or sentence
must be brought under 28 U.S.C. § 2255 in the district where the
petitioner was sentenced. 	See 28 U.S.C. § 2255(a); Edwards v.
Warden, FCI Berlin, No. 19-CV-1271-JD, 2020 WL 2404886, at *1
(D.N.H. May 12, 2020); Concepcion v. Hazlewood, No. 18-CV-900-
LM, 2019 WL 376389, at *2 (D.N.H. Jan. 9, 2019), R. & R.
approved sub nom. Concepcion v. FCI Berlin, Warden, No. 18-CV-
900-LM, 2019 WL 369282 (D.N.H. Jan. 30, 2019), aff’d, No. 19-
1162 (1st Cir. Aug. 29, 2019). 	Before filing a second or
successive § 2255 petition, a federal prisoner must first obtain
authorization from the court of appeals. 	Bucci v. United
States, 809 F.3d 23, 25 (1st Cir. 2015). 	Absent such
authorization, the district court lacks jurisdiction over a
second or successive § 2255 petition. 	Trenkler v. United
States, 536 F.3d 85, 96 (1st Cir. 2008).
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Section 2255(e), known as the “savings clause,” preserves a
limited role for the court in the district of a federal
prisoner’s incarceration to consider a petition challenging the
validity of a detention under 28 U.S.C. § 2241. 	See United
States v. Barrett, 178 F.3d 34, 49 (1st Cir. 1999). 	A defendant
may seek relief under § 2241 only if relief under § 2255 is
“inadequate or ineffective to test the legality of his
detention.” 	28 U.S.C. § 2255(e). 	“[P]ost-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.” 	Trenkler, 536 F.3d at 99 (internal quotation
marks omitted). 	“Such circumstances exist if the petitioner
makes a credible allegation of actual innocence or, based on a
new statutory interpretation by the Supreme Court, the
petitioner is no longer guilty of the crime of conviction.”
Edwards, 2020 WL 2404886, at *1; see Trenkler, 536 F.3d at 99;
Sustache-Rivera v. United States, 221 F.3d 8, 16 (1st Cir.
2000); Concepcion, 2019 WL 376389, at *3.
On three separate occasions, the sentencing court informed
Tobias that he would need to obtain authorization from the
Eleventh Circuit to file a second or successive § 2255 petition.
Instead of doing so, he filed this petition under § 2241 in the
district where he is currently incarcerated. 	Construed
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liberally, his petition does not establish that relief under
§2255 is “inadequate” or “ineffective” such that he is entitled
to relief under § 2241.
First, Tobias has not asserted a credible claim of actual
innocence. 	See Trenkler, 536 F.3d at 99. 	To show actual
innocence, “petitioner must show that it is more likely than not
that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” 	Gunter v. Maloney, 291 F.3d 74, 83
(1st Cir. 2002) (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)). 	Actual innocence requires “factual innocence, not mere
legal insufficiency.” 	Bousley v. United States, 523 U.S. 614,
623 (1998). 	Although Tobias avers that he is actually innocent,
he has proffered no facts or evidence to support the claim. 	See
House v. Bell, 547 U.S. 518, 537 (2006) (stating that a credible
claim of actual innocence “requires new reliable evidence-
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence-that was not
presented at trial”) (internal quotation marks omitted).
Second, Tobias has not alleged that, based on a new
statutory interpretation by the Supreme Court, he is no longer
guilty of the crime of conviction. 	See Sustache-Rivera, 221
F.3d at 16. 	His reliance on Burrage, 571 U.S. 204, is
misplaced. 	Burrage does not apply in the instant matter because
it did not change the settled law applicable to Tobias’s case.
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In that case, the Supreme Court found that “but for” causation
is required in order to apply the “death-results” sentencing
enhancement under 21 U.S.C. § 841(b)(1)(C). 	See Burrage, 571
U.S. at 218-19. 	As Tobias recognizes in the petition, his
sentence was enhanced based upon the quantity of drugs
attributed to him, not because of death or serious bodily
injury. 1
Tobias’s remaining claims could have been asserted in his
direct appeal or in his first § 2255 motion. 	Where, as here,
the petitioner missed an opportunity to present a claim in a
prior § 2255 motion, any “ineffectiveness” of the § 2255 process
“is due to him and not to § 2255.” 	Barrett, 178 F.3d at 53.
In sum, Tobias has failed to show that the configuration of
§ 2255 has denied him any opportunity for judicial rectification
as to his claims challenging the validity of his conviction and
sentence. 	Accordingly, the court lacks jurisdiction pursuant to
the savings clause of § 2255(e) to provide relief to Tobias
under § 2241.
1 	To the extent Tobias argues that his sentence was imposed
in violation of the principles announced in Alleyne, 570 U.S. 99,
it suffices to note that Alleyne does not apply retroactively to
cases on collateral review. 	See Butterworth v. United States,
775 F.3d 459, 468 (1st Cir. 2015); see also Nascimento v. United
States, No. 13-CV-385-LM, 2015 WL 1013899, at *3 (D.N.H. Mar. 9,
2015) (holding that the court lacked jurisdiction to entertain a
§ 2241 petition based on Alleyne), aff’d, No. 15-1357 (1st Cir.
June 23, 2015); Williams v. Spaulding, No. 18-CV-11554-KAR, 2019
WL 2107275, at *6 (D. Mass. May 14, 2019) (same).
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IV. 	CONCLUSION
For the foregoing reasons, the district judge should
dismiss Tobias’s § 2241 petition (Doc. No. 1) for lack of
savings clause jurisdiction, without prejudice to Tobias’s
ability to seek permission in the Eleventh Circuit to file a
successive § 2255 motion in the Middle District of Florida.
Furthermore, because Tobias did not make a “substantial showing
of the denial of a constitutional right,” the district judge
should decline to issue a certificate of appealability. 	See 28
U.S.C. § 2253(c)(2).
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
motion. 	Failure to file a specific written objection to the
Report and Recommendation 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
August 4, 2020
cc: 	Luis Tobias, pro se
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