United States District Court, M.D. Pennsylvania
H. RAMBO United States District Judge
20, 2017, Petitioner Ricardo Morales (“Morales”),
an inmate at the Federal Correctional Institution at
Allenwood in White Deer, Pennsylvania, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
(Doc. No. 1.) Morales seeks to challenge a sentence imposed
by the United States District Court for the Southern District
of New York in United States v. Diaz, et al., Crim.
was found guilty by a jury in the Southern District of New
York “of racketeering, Hobbs Act, and firearms
violations” and on August 13, 1997, was sentenced
“to imprisonment for life plus 125 years.”
United States v. Morales, Crim. No. 96-00317-DC-2,
2003 WL 21511927, at *1 (S.D.N.Y. Jul. 1, 2003). On July 26,
1999, the “Second Circuit reversed and vacated his
conviction on the RICO counts and other counts dependent on
RICO, but affirmed his convictions for robbery in violation
of the Hobbs Act, use and possession of a firearm in relation
to the Hobbs Act offenses, and possession of a firearm as a
felon.” Id. Morales was resentenced on January
29, 2001 to 110 years imprisonment, which was affirmed by the
Second Circuit on November 28, 2001. Id.
April 7, 2003, Morales filed a motion to vacate, set aside,
or correct the sentence pursuant to 28 U.S.C. § 2255.
Id. His motion was denied by the sentencing court on
July 1, 2003. Id. Morales also attempted to appeal
his sentence via an amended judgment on July 30, 2013,
however, it was dismissed by the Second Circuit because he
had “already appealed his sentence, unsuccessfully,
following the district courts entry of the 2001
judgment.” Morales, Crim. No. 96-00317-DC-2 at
Doc. No. 171. Morales subsequently filed this instant
petition pursuant to 28 U.S.C. § 2241, challenging the
career offender sentence enhancement and asserting a right to
be released on the grounds of actual innocence. (Doc. No. 1.)
Morales claims that Descamps v. United States, 570
U.S. 254 (2013) and Matthis v. United States, __
U.S. __, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016)
“collectively renders the instant conviction
categorically unfit to support the career offender
penalty.” (Doc. No. 1-1 at 1.)
challenging the validity of a federal conviction or sentence
and not its execution, a federal prisoner is generally
limited to seeking relief by way of a motion pursuant to 28
U.S.C. § 2255. See In re Dorsainvil, 119 F.3d
245, 249 (3d Cir. 1997); Russell v. Martinez, 325 F.
App'x 45, 47 (3d Cir. 2009) (“a section 2255 motion
filed in the sentencing court is the presumptive means for a
federal prisoner to challenge the validity of a conviction or
sentence.”). A challenge can only be brought under
§ 2241 if “it . . . appears that the remedy by [a
§ 2255] motion is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e).
This “safety-valve” clause is to be strictly
construed. Dorsainvil, 119 F.3d at 251;
Russell, 325 F. App'x at 47 (the safety valve
“is extremely narrow and has been held to apply in
unusual situations, such as those in which a prisoner has had
no prior opportunity to challenge his conviction for a crime
later deemed to be non-criminal by an intervening change in
2255 is not inadequate or ineffective merely because the
sentencing court does not grant relief, the one-year statute
of limitations has expired, or the petitioner is unable to
meet the stringent gatekeeping requirements of . . . §
2255.” Cradle v. United States, 290 F.3d 536,
539 (3d Cir. 2002). Rather, “[i]t is the inefficacy of
the remedy, not the personal inability to use it, that is
determinative.” Id. at 538. Moreover, the
burden is on the habeas petitioner to allege or demonstrate
inadequacy or ineffectiveness. See Dusenbery v.
Oddo, Civ. No. 17-2402, 2018 WL 372164, at *3 (M.D. Pa.
Jan. 11, 2018) (citing Application of Galante, 437
F.2d 1164, 1165 (3d Cir. 1971)). Prior unsuccessful §
2255 motions filed in the sentencing court are insufficient
in and of themselves to show that the motion remedy is
inadequate or ineffective. Tripati v. Henman, 843
F.2d 1160, 1162 (9th Cir. 1988), cert. denied, 488
U.S. 982 (1988); Litterio v. Parker, 369 F.2d 395,
396 (3d Cir. 1966) (per curiam). If a petitioner improperly
challenges a federal conviction or sentence under §
2241, the petition must be dismissed for lack of
recognized in Dorsainvil, a federal prisoner can
pursue relief under § 2241 only where a subsequent
statutory interpretation reveals that the prisoner's
conduct is not criminal so as to avoid a complete miscarriage
of justice. Dorsainvil, 119 F.3d at 251; see
also Okereke v. United States, 307 F.3d 117, 120-21 (3d
Cir. 2002) (holding § 2241 may not be used to raise an
Apprendi v. New Jersey, 530 U.S. 466 (2000) claim
that is barred by the procedural limitations imposed by the
AEDPA); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th
Cir. 2000) (concluding § 2241 may not be used to
challenge a determination that the prisoner was a career
offender under U.S.S.G. § 4B1.1 where subsequent
statutory interpretation revealed that the conduct at issue
could not support a finding that the prisoner was a career
offender); Brown v. Mendez, 167 F.Supp.2d 723,
726-27 (M.D. Pa. 2001). “Section 2241 is not available
for intervening changes in the sentencing law, ” such
as arguments based on Apprendi.” United
State v. Kenney, 391 F. App'x 169, 172 (3d Cir.
2010). Sentencing claims “[do] not fall within the
purview of the savings clause.” Adderly v.
Zickefoose, 459 F. App'x 73, 2012 WL 252416, at *2
(3d Cir. 2012); Pearson v. Warden Canaan USP, 685 F.
App'x 93, 96 (3d Cir. 2017) (“§ 2241 is not
available for an intervening change in the sentencing
extent that Morales claims he meets the requirements under
the savings clause based on his actual innocence of being a
career offender, such a claim is not a claim of actual
innocence of the crime of conviction and, thus, not the type
of claim that warrants review under § 2241. See
Brown v. Bledsoe, 2012 WL 92344, at *8 (M.D. Pa. Jan.
11, 2012); Chestnut v. Thomas, 2014 WL 6886251, at
*5 (M.D. Pa. Dec. 4, 2014); Allen v. Longley, 2012
WL 4052228 at *2 (S.D.Miss. Sept. 13, 2011); Bradford v.
Tamez, 660 F.3d 226, 230 (5th Cir. 2011).
also argues that Descamps and Matthis
“collectively render the instant conviction
categorically unfit to support the career offender
penalty.” (Doc. No. 1-1 at 1.) However, Morales offers
no evidence that the United States Supreme Court or the Third
Circuit has held that Descamps or Matthis
announced a new rule of law retroactively applicable to cases
on collateral review. See Jackson v. Kirby, Civ. No.
17-4651, 2017 WL 3908868, at *1, n.1 (D.N.J. Sept. 6, 2017)
(noting that neither the Supreme Court nor the Third Circuit
Court of Appeals has decided whether Matthis is
retroactively applicable on collateral review); U.S. v.
Upshaw, Civ. No. 14-278, 2014 WL 3385118, at *2 (N.D.
Fla. Jul. 9, 2014) (collecting cases that provide that the
Supreme Court has not declared its decision in
Descamps to be retroactively applicable on
collateral review); Smith v. Warden Lewisburg USP,
614 F. App'x 52, 55 (3d Cir. 2015) (providing that
Descamps “does not constitute the rare
situation of an intervening change of the law sufficient to
apply the ‘safety valve' provided by §
relies on the Supreme Court's grant, vacate and remand
order (“GVR”) in Persaud v. United
States, 134 S.Ct. 1023 (2014), to argue that he is
entitled to relief under § 2241. (Doc. Nos. 1-1, 7.) In
Persaud, the defendant sought to challenge a
sentencing enhancement in a § 2241 petition and the
savings clause of § 2255. On appeal, the Solicitor
General conceded that a federal prisoner is not categorically
barred from challenging a sentencing enhancement under §
2241, and then asked the Supreme Court to remand the case to
the Fourth Circuit for reconsideration. See Brief of
Appellee at *22-23, Persaud, 134 S.Ct. at 1023. The
Supreme Court acquiesced and issued a GVR order. Id.
at 1023. The Supreme Court's GVR order, however, was not
a reversal on the merits. See Communities for Equity v.
Mich. High Sch. Athletic Ass'n, 459 F.3d 676, 681
(6th Cir. 2006). Rather, the GVR order was “a device
that allows a lower court that had rendered its decision
without the benefit of an intervening clarification to have
an opportunity to reconsider that decision and, if warranted,
to revise or correct it.” Gonzalez v. Justices of
the Mun. Ct. of Boston, 420 F.3d 5, 7 (1st Cir. 2005).
put, the GVR order in Persaud “is not a
substantive decision.” See Sharbutt v.
Vasquez, 600 F. App'x 251, 252 (5th Cir. 2015);
Gonzalez, 420 F.3d at 7 (a GVR order “does not
constitute a final determination on the merits; it does not
even carry precedential weight”). Moreover, as noted by
Respondent, the brief for the United States in
Persaud acknowledges a narrow category where a
sentencing claim may be raised via § 2241 under the
savings clause, i.e, only with sentences that exceed
the statutory maximum or where a greater mandatory minimum
sentence was required, and such claims must rely upon
intervening case law that has been made retroactive to cases
on collateral review. (Doc. No. 6 at 6); Brief of Appellee at
*22-23, Persaud, 134 S.Ct. at 1023. In the instant
case, however, Morales does not set forth any decisions under
Second Circuit case law that abrogates prior circuit
precedent that had previously foreclosed his claim.
also argues that Beckles v. United States, 137 S.Ct.
886 (2017), allows him to challenge the career offender
enhancement pursuant to § 2241, as long as he was
sentenced under the pre-Booker Guidelines. (Doc. No.
1-1 at 3.) However, Beckles only resolved a
void-for-vagueness collateral challenge to a
post-Booker application of the now advisory
guidelines. “In Beckles, by adhering to the
‘distinction between mandatory and advisory, ' the
Supreme Court ‘le[ft] open the question [of] whether
defendants sentenced to terms of imprisonment before
[Booker] . . . may mount vagueness attacks on their
sentences.'” UnitedStates v.
Scott, No. 98-cr-170, 2018 WL 656038, at *2 (M.D. Pa.
Feb. 1, 2018) (citing Beckles, 187 S.Ct. at 903 n.3
(Sotomayor, J., ...