1:17-cv-00279•Matthews v. FCI Berlin, Warden
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Akiba Malik Matthews v. Case No. 17-cv-279-JL FCI Berlin, Warden REPORT AND RECOMMENDATION Before the court is Akiba Malik Matthews’s petition for writ of habeas corpus (Doc. No. 1), filed pursuant to 28 U.S.C. § 2241. That petition and Mr. Matthews’s “Memorandum in Support of Savings Clause Jurisdiction under 28 U.S.C. §§ 2241, 2255(e)” (Doc. Nos. 15, 16) have been referred to the undersigned magistrate judge for a Report and Recommendation. See May 16, 2019 Order. Background On May 23, 2008, a federal jury for the U.S. District Court for the District of Maryland convicted Mr. Matthews on three counts: distribution and possession of narcotics (Count One), possession of a firearm during and in relation to a drug trafficking crime (Count Two), and possession of a firearm by a convicted felon (Count Three). See United States v. Matthews, No. 07-cr-581-CCB-1 (D. Md. Aug. 28, 2008) (“Matthews 1”), ECF Nos. 66, 84. The District Court sentenced Mr. Matthews in August 2008 to 240 months’ imprisonment for Count One; 300 Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 1 of 17
2 months for Count Three to run concurrently with the sentence for Count One; and 60 months for Count Two to run consecutively to the sentences for Counts One and Three, followed by three years of supervised release. See J., Matthews 1, ECF No. 84. Mr. Matthews appealed, arguing that the trial court erred both in denying his pretrial motion to dismiss the indictment and in refusing to suppress evidence seized during a traffic stop, and that the district court abused its discretion in imposing a 360-month sentence. See United States v. Matthews, 373 F. App’x 386, 389 (4th Cir. 2010) (per curiam) (“Direct Appeal”). Noting that 360 months was the low end of the advisory guidelines range calculated under the U.S. Sentencing Guidelines, the Fourth Circuit rejected each argument and affirmed Mr. Matthews’s conviction and sentence. Id. at 393. On July 8, 2011, Mr. Matthews filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 in the District of Maryland, seeking to vacate his sentence. See § 2255 Mot., Matthews v. United States, No. 11-cv-1897-CCB (D. Md. July 8, 2011), ECF No. 1 (“Matthews 2”). In that motion, Mr. Matthews argued that he received constitutionally deficient legal representation because his trial attorney: (1) failed to move for judgment of acquittal on Count One; (2) failed to object when Count Two was “broadened by the evidence at trial” and “constructively amended” by the Court’s jury instructions; Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 2 of 17
3 and (3) failed to investigate whether the grand jury returned the indictment publicly in open court. Matthews 2, ECF No. 1-1 at 1-2, 10-34. The court in Matthews 2 denied the § 2255 motion and concluded that Mr. Matthews was not entitled to a certificate of appealability. See Matthews 2, ECF No. 2-1. The Fourth Circuit denied Mr. Matthews’s subsequent motion for a certificate of appealability and dismissed his appeal. See United States v. Matthews, No. 13-6091 (4th Cir. May 29, 2013) (unpublished per curiam opinion), ECF No. 9; Matthews 1, ECF No. 120. While his § 2255 motion was pending in the District Court, Mr. Matthews filed a new motion in his underlying criminal case, seeking dismissal of the indictment. See Matthews 1, ECF No. 105. The district court denied that motion in a margin order, see Matthews 1, ECF No. 106, and the Fourth Circuit affirmed, see United States v. Matthews, No. 12-6113 (4th Cir. May 23, 2012) (unpublished per curiam opinion), ECF No. 7; Matthews 1, ECF No. 110. Thereafter, Mr. Matthews filed a second § 2255 motion, challenging the validity of his sentence. See Matthews 1, ECF No. 118. The District Court dismissed the second § 2255 motion without prejudice, concluding that Mr. Matthews had not obtained permission from the Fourth Circuit to file a successive § 2255 motion, as required under 28 U.S.C. § 2244. See Matthews 1, ECF Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 3 of 17
4 No. 119. The District Court once again denied Mr. Matthews a certificate of appealability. See id. It does not appear from the record that Mr. Matthews appealed that judgment. After being transferred to the Federal Correctional Institution in Berlin, New Hampshire (“FCI Berlin”), Mr. Matthews filed the instant § 2241 petition (Doc. No. 1) in this court, again challenging his sentence. The undersigned conducted a preliminary review of the petition and directed service (Doc. No. 4). Once served, the government moved to dismiss (Doc. No. 8) for want of jurisdiction, arguing that because Mr. Matthews solely alleged a violation of his Sixth Amendment right to the effective assistance of counsel, he must seek permission from the Fourth Circuit to file a successive § 2255 motion in the District of Maryland. In his response (Doc. No. 9), Mr. Matthews contended that he in fact had brought two claims in addition to his Sixth Amendment claim, specifically (1) that the sentencing judge constructively amended the indictment; and (2) that the sentencing judge imposed a sentence in excess of the statutory maximum. Mr. Matthews argued that all three claims were properly before this court because they fall within § 2255’s “savings clause.” See 28 U.S.C. § 2255(e). This court granted the government’s motion to dismiss Mr. Matthews’s Sixth Amendment claim for lack of jurisdiction, Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 4 of 17
5 finding that to pursue that claim, Mr. Matthews must seek permission from the Fourth Circuit to file a successive § 2255 motion in the District of Maryland. 1 See Mar. 25, 2019 Order (Doc. No. 14), at 2. The court agreed with Mr. Matthews, however, that, at least when construed liberally, his petition contained the two additional claims he identified in his response to the motion to dismiss. See id. Because the government had not addressed those claims in its motion, the court declined to dismiss them and instead directed Mr. Matthews to show cause whether either claim falls within this court’s savings clause jurisdiction. See id. at 9. The court also granted the government leave to file a response brief. See id. Mr. Matthews then filed the same memorandum twice (Doc. Nos. 15, 16) arguing that his claims fall within this court’s savings clause jurisdiction. The government did not file a response to Mr. Matthews’s memorandum. As the court construes Mr. Matthews’s petition and memorandum, one of Mr. Matthews’s remaining claims (hereinafter “constructive amendment claim”) is based on the arguments that: 1) Under the Fifth Amendment Due Process Clause and the Sixth Amendment notice and jury trial guarantees, any fact that increases the maximum penalty for a crime is an 1 In July 2020, the Fourth Circuit denied Mr. Matthews’s request for an order authorizing the District Court in Maryland to consider a second or successive application for relief under 28 U.S.C. § 2255. See In re Matthews, No. 20-363, 2020 U.S. App. LEXIS 21663 (4th Cir. July 13, 2020). Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 5 of 17
6 element of that crime and must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt, or be admitted by the defendant; 2) The sentencing court relied upon Mr. Matthews’s prior convictions for serious drug offenses to increase the maximum penalty for his § 922(g)(1) conviction (Count Three); 3) The indictment for Count Three did not charge that Mr. Matthews had serious prior drug offenses that would subject him to an enhanced sentence or identify those prior convictions; and 4) The sentencing court’s imposition of an enhanced sentence for Count Three constructively amended the indictment in violation of the Fifth Amendment Grand Jury clause and denied Mr. Matthews fair notice that the court would impose an enhanced sentence. 2 Mr. Matthews’s other remaining claim (hereinafter “unlawful minimum/maximum sentence claim”), as the court understands it, is that because of the constructive amendment to the indictment, the court relied upon an incorrect (15-year) statutory minimum - derived from the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1) - and imposed a sentence in excess of the 10-year 2 Mr. Matthews also claims his “right to notice and Due process was violated by the failure to charge or even inform, [him] of . . . the 841(b)(1)(A) charge, [or] the enhanced penalty that comes with it.” Pet. (Doc. No. 1), at 25. The nature of that claim is not clear. Count One of the indictment charged Mr. Matthews with distribution and possession of heroin, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Count Two charged him with possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), and Count Three charged him with being a felon in possession of firearm, in violation of 18 U.S.C. § 922(g)(1). See Indict. Matthews 1, ECF No. 97-3, at 2. See also Direct Appeal, 373 F. App’x at 387. Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 6 of 17
7 statutory maximum for his 18 U.S.C. § 922(g)(1) conviction, in violation of the Due Process Clause of the Fifth Amendment. 3 See Pet. (Doc. No. 1), at 26. Savings Clause Jurisdiction Generally, a federal inmate may only challenge his conviction or sentence under 28 U.S.C. § 2255. See Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008). That statute provides exclusive jurisdiction over motions challenging the validity of a sentence to the court that imposed the sentence. See 28 U.S.C. § 2255(a). Section 2255 has a statutory carveout, § 2255(e), known as the “savings clause.” Under that section, a prisoner may challenge his sentence under 28 U.S.C. § 2241 in the district in which he is incarcerated, when a § 2255 motion would be “inadequate or ineffective to test the legality of [the prisoner’s] detention.” 28 U.S.C. § 2255(e). “[A]dequacy and effectiveness must be judged ex ante,” and “post-conviction relief can be termed ‘inadequate’ or ‘ineffective’ only when, in a particular case, the configuration 3 Mr. Matthews does not contend that the trial court incorrectly calculated his sentence under the U.S. Sentencing Guidelines. Instead, his argument is that the Guidelines minimum (360 months) and maximum (life), see Direct Appeal, 373 F. App’x at 392-93, both exceeded the ten-year statutory maximum for a § 922(g) conviction (absent an ACCA enhancement), and that the court therefore should have sentenced him to no more than 10 years for his Count Three conviction. Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 7 of 17
8 of section 2255 is such as to deny a convicted defendant any opportunity for judicial rectification,” or when “strict adherence to [the Anti-Terrorism and Effective Death Penalty Act’s] gatekeeping provisions would result in a ‘complete miscarriage of justice.’” Trenkler, 536 F.3d at 99 (citations omitted) (emphasis in original); see also United States v. Barrett, 178 F.3d. 34, 51 (1st Cir. 1999) (the “essential function of habeas corpus” is to give “‘a prisoner a reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence’” (quoting In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998))). “The savings clause has most often been used as a vehicle to present an argument that, under a Supreme Court decision overruling the circuit courts as to the meaning of a statute, a prisoner is not guilty within the new meaning attributed to the statute.” Sustache-Rivera v. United States, 221 F.3d 8, 16 (1st Cir. 2000) (footnote omitted). “The savings clause has to be resorted to for such a statutory claim because Congress restricted second or successive petitions to constitutional claims.” Id. Matthews contends that § 2255 is inadequate and/or ineffective to test the legality of his sentence because: 1) he failed to raise his constructive amendment claim and unlawful sentence claim in his first § 2255 motion, see Pet. (Doc. No. 1), at 18 (acknowledging his procedural default of those Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 8 of 17
9 claims); and 2) a second or successive § 2255 motion may be authorized only when it is premised on either newly discovered evidence of actual innocence or a new rule of constitutional law made retroactive by the Supreme Court to cases on collateral review, and his claims do not rely on either, see id. But the “mere inability” to secure authorization to file a second or successive § 2255 motion, without more, “does not afford access to the savings clause.” Trenkler, 536 F.3d at 98-99 (citation omitted). The claims at issue here do not fall within this court’s savings clause jurisdiction because they could have been raised previously, and failing to address them here will not result in a miscarriage of justice, for reasons explained below. Discussion I. Constructive Amendment Claim The Fifth Amendment guarantees that no one will be deprived of liberty without “‘due process of law’”; and the Sixth Amendment guarantees “that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’” United States v. Gaudin, 515 U.S. 506, 509–10 (1995) (quoting U.S. Const. amend. V, VI). “[T]hese provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Id. at 510 (citation omitted). Thus, every element of the Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 9 of 17
10 offense “must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.” Jones v. United States, 526 U.S. 227, 232 (1999). In Almendarez-Torres v. United States, the Supreme Court refused to adopt a rule that any fact, including the existence of a prior conviction, that increases the statutory maximum sentence for an offense is an element of that offense. 523 U.S. 224, 247 (1998). “Almendarez-Torres[,] . . . fairly construed, established that a sentencing enhancement may be grounded on prior criminal convictions neither separately charged [in the indictment] nor proven to a jury.” United States v. Gonzalez, 949 F.3d 30, 41 (1st Cir. 2020) (citation and internal quotation marks omitted), petition for cert. filed, No. 19-8783 (U.S. June 13, 2020); see also Apprendi v. New York, 530 U.S. 466, 490 (2000) (“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”). Matthews contends that Almendarez- Torres’s “theoretical underpinnings have now been rejected [by later Supreme Court decisions], and the Supreme Court is poised to overrule it.” Pet. (Doc. No. 1), at 27 (citing, e.g., Alleyne v. United States, 570 U.S. 99 (2013); Shepard v. United States, 544 U.S. 13, 27-28 (2005) (Thomas, J., concurring); United States v. Booker, 543 U.S. 220 (2005); Blakely v. Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 10 of 17
11 Washington, 542 U.S. 296 (2004)). In an opinion addressing the same argument Mr. Matthews makes here, the First Circuit stated: We are not at liberty to browse through these tea leaves and vaticinate what future holdings the Supreme Court may (or may not) make. Where, as here, a Supreme Court decision applies directly to a case before us yet arguably depends on a rationale called into question by a later decision, we must still follow the decision that directly applies. Gonzalez, 949 F.3d at 42 (citations omitted). In sum, since Almendarez-Torres has neither been overruled nor abrogated by the Supreme Court, it remains the law that governs this case. See Gonzalez, 949 F.3d at 42. Mr. Matthews’s constructive amendment claim was available either for plain error review on direct appeal or habeas review in his first § 2255 motion to vacate. Except for Alleyne, all the cases he cites to support his Almendarez-Torres argument were decided before Mr. Matthews filed his first § 2255 motion. See Pet. (Doc. No. 1). Moreover, Mr. Matthews does not assert that there has been an intervening change in the interpretation of a statute that would have rendered him not guilty of one or more of the offenses of which he was convicted, or of any predicate offense upon which his mandatory minimum sentence was based. Cf. Sustache-Rivera, 221 F.3d at 16 & n.14; Mata v. Hazlewood, No. 17-cv-092-JL, 2018 U.S. Dist. LEXIS 31656, at *8 (D.N.H. Jan. 29, 2018) (accepting government’s concession in Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 11 of 17
12 that case that savings clause jurisdiction extended to allow court to consider whether petitioner’s prior state conviction still qualified as predicate offense for purposes of applying ten-year minimum under 21 U.S.C. § 841), R&R approved, 2018 U.S. Dist. LEXIS 31116 (D.N.H. Feb. 26, 2018). In short, Mr. Matthews has not demonstrated that the configuration of § 2255 has effectively denied him the opportunity for judicial review of his constructive amendment claim. Cf. Trenkler, 536 F.3d at 99. Mr. Matthews also contends that the application of § 2255’s gatekeeping provisions for second or successive motions to vacate would result in a complete miscarriage of justice, see id., because he is serving a sentence in excess of the statutory maximum. See Pet. (Doc. No. 1), at 35. An error at sentencing rises to the level of a “fundamental defect” and results in a complete miscarriage of justice if the prisoner “is either actually innocent of his crime or . . . a prior conviction used to enhance his sentence has been vacated.” Spencer v. United States, 773 F.3d 1132, 1139 (11th Cir. 2014); see also Damon v. United States, 732 F.3d 1, 5–6 (1st Cir. 2013) (rejecting claim of actual innocence of non-capital sentence where petitioner did not demonstrate actual factual innocence of the crime used to enhance his sentence). Mr. Matthews does not allege that he is factually innocent Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 12 of 17
13 of any of his crimes of conviction or his predicate offenses. Nor does he allege that any of his predicate offenses have been vacated. As such, Mr. Matthews has not demonstrated that failure to consider his claim under the savings clause would result in a miscarriage of justice. Cf. United States v. Olano, 507 U.S. 725, 736 (1993) (in general, in “collateral-review jurisprudence, the term ‘miscarriage of justice’ means that the defendant is actually innocent” (citation omitted)); Trenkler, 536 F.3d at 99 (“Most courts have required a credible allegation of actual innocence to access the savings clause.”). Consequently, the court lacks savings clause jurisdiction over his constructive amendment claim. II. Unlawful Minimum/Maximum Sentence Claim In sentencing Mr. Matthews, the District Court in Maryland grouped Counts One and Three together, making the sentences on those counts concurrent. See Sent. Tr., Matthews 1, ECF No. 94 at 46:9-10. Mr. Matthews’s conviction for Count Two, possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), carried a 60-month mandatory consecutive sentence. See Sent. Tr., Matthews 1, ECF No. 94 at 47:2-4. To calculate the applicable guidelines range for Mr. Matthews’s sentence, the court applied the Career Offender Table Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 13 of 17
14 for a § 924(c) offense, set forth in United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1(c)(3). 4 See Sent. Tr., Matthews 1, ECF No. 94 at 47:4-8. The court determined from the table that Mr. Matthews’s adjusted sentencing guidelines range was 360 months to life in prison. See id. at 47:8-10. The court imposed concurrent sentences of 240 and 300 months, respectively, on Counts One and Three, and a consecutive sentence of 60 months on Count 2, for a total sentence of 360 months. See J., Matthews 1, ECF No. 84, at 2. Matthews contends the 300-month (25-year) Guidelines sentence for his § 922(g)(1) conviction exceeded the 10-year statutory maximum for such an offense. See Pet. (Doc. No. 1), at 21. Mr. Matthews refers to 18 U.S.C. § 924(a)(2), which at the time he committed the § 922(g)(1) offense and was indicted, convicted, and sentenced on Count Three, provided that “[w]hoever knowingly violates . . . [§ 922(g)] shall be . . . 4 Mr. Matthews’s offense level was calculated to be 18 based upon the quantity of drugs for which he was responsible. See Sent. Tr., Matthews 1, ECF No. 94 at 46:10-13. Mr. Matthews was determined to be a career offender under U.S.S.G. § 4B1.1, as he had four prior qualifying drug convictions, raising his offense level to 32 under the “career offender” guidelines. See Sent. Tr., Matthews 1, ECF No. 94 at 46:19-24. His criminal history level was VI based upon both the number of points for prior convictions (16) and his status as a “career offender.” See id. at 46:24-47:1. Mr. Matthews’s “criminal history was so extensive that, even absent the career offender designation, his criminal history category was VI.” Direct Appeal, 373 F. App’x at 392 n.3. Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 14 of 17
15 imprisoned not more than 10 years . . . .” 18 U.S.C. § 924(a)(2) (2006). Mr. Matthews also contends that the court applied an incorrect statutory minimum - 15 years, found at § 924(e)(1) - to arrive at his sentence for Count Three. See Pet. (Doc. No. 1), at 25. Section 924(e)(1) provides that: In the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). 18 U.S.C. § 924(e)(1) (2006). Section 924(e) is a recidivist provision that enhances the sentence to which it applies. Mr. Matthews cannot rely on any intervening change in controlling precedent concerning the applicability of that statute, in arguing that the configuration of section 2255 previously rendered him unable to raise his unlawful minimum/maximum sentence claim. Cf. Trenkler, 536 F.3d at 99. It has been the law in the Fourth Circuit and elsewhere at all pertinent times that “[s]ection 924(e) enhances the sentence for a violation of § 922(g) to a term of imprisonment of not less than 15 years when the defendant has ‘three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 15 of 17
16 another.’” United States v. Cheek, 415 F.3d 349, 350 n.* (4th Cir. 2005) (quoting 18 U.S.C. § 924(e)(1)); accord United States v. James, 950 F.3d 289, 290 (5th Cir. 2020) (“[u]nder the ACCA, the ordinary statutory maximum sentence of ten years of imprisonment [under § 924(a)(2)] morphs to a statutory minimum of fifteen years of imprisonment” under § 924(e)(1) (emphasis in original)). Moreover, Mr. Matthews’s unlawful minimum/maximum sentence claim is derivative of his constructive amendment claim. In other words, his claim that the court relied upon an incorrect statutory minimum and imposed a sentence in excess of the statutory maximum relies on the merits of the constructive amendment claim for its own success. As the constructive amendment claim does not fall within this court’s savings clause jurisdiction, by extension, his unlawful minimum/maximum sentence claim likewise does not. Mr. Matthews does not assert that there has been an intervening change in the criminal law that would have rendered him not guilty of the § 922(g) conviction. Cf. Sustache-Rivera, 221 F.3d at 16 & n.14. Nor does he allege that he is factually innocent of the § 922(g) offense or of any of his predicate offenses. Mr. Matthews points to no change in the law that made § 924(e) inapplicable to his sentence calculations. And he does not allege that any of his predicate offenses have been vacated Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 16 of 17
17 or invalidated since the time of his sentencing or first § 2255 motion. As such, Mr. Matthews has not demonstrated that a miscarriage of justice has occurred in his case. Under such circumstances, the court lacks savings clause jurisdiction over his unlawful minimum/maximum sentence claim. Conclusion For the foregoing reasons, the district judge should dismiss Mr. Matthews’s § 2241 petition in its entirety for lack of savings clause jurisdiction. 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 specific written objections 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 September 28, 2020 cc: Akiba Malik Matthews, pro se Case 1:17-cv-00279-JL Document 17 Filed 09/28/20 Page 17 of 17
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