Conlan v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joshua Conlan
v. Civil No. 17-cv-181-JL
Robert Hazlewood
REPORT AND RECOMMENDATION ON DOCUMENT NOS. 1 & 7
Joshua Conlan, while incarcerated at the Federal
Correctional Institution in Berlin, New Hampshire, filed a
petition for a writ of habeas corpus (Doc. No. 1), pursuant to
28 U.S.C. § 2241, challenging his 2013 criminal conviction and
sentence in the Western District of Texas. This court’s
September 15, 2017 Report and Recommendation (“September 15
R&R”) (Doc. No. 4) recommended dismissal of the § 2241 petition
for lack of savings clause jurisdiction. Conlan then filed a
“Motion to Reinstate Action Due to New Evidence” (Doc. No. 7),
while the September 15 R&R remained pending. This court has
construed Document No. 7, in part, to be a motion to reconsider
the September 15 R&R, addressed to the undersigned magistrate
judge. An Order issued this date withdraws the September 15
R&R, and this Report and Recommendation replaces it.
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Preliminary Review Standard
Conlan’s petition (Doc. No. 1) and the allegations in
Document No. 7 which relate to Conlan’s claims are before this
court for preliminary review to determine whether the petition
is 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). Because Conlan is proceeding pro se, his
pleadings are construed liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam).
Background
Conlan was convicted, in the Western District of Texas, of
three counts of interstate stalking targeting a victim (“JMP”)
and her husband. See United States v. Conlan, No. 1:11-cr-
00451-LY-1 (W.D. Tex.). The Fifth Circuit affirmed the
conviction. See United States v. Conlan, 786 F.3d 380 (5th Cir.
2015). Conlan thereafter filed a motion pursuant to 28 U.S.C.
§ 2255 in his criminal case, which was denied. See Conlan v.
United States, No. A-11-CR-451(1) LY, 2015 WL 8362905, at *5,
2015 U.S. Dist. LEXIS 163935, at *14 (W.D. Tex. Dec. 7, 2015)
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(ECF No. 273), R&R approved, No. A-11-CR-451(1) LY, Order (W.D.
Tex. May 17, 2016) (ECF No. 296) (“Order on § 2255 Motion”).
In 2016, while incarcerated in a federal facility in
Virginia, Conlan filed a § 2241 petition, challenging the same
conviction at issue here. See Conlan v. Wilson, No. 16-cv-116-
LO-MSN (E.D. Va.) (“Wilson”). In Wilson, as here, Conlan argued
that evidence not presented to the jury, consisting of his JMP’s
February 2011 affidavit, see id., Protective Ord. Aff. (E.D. Va.
filed Feb. 4, 2016) (ECF No. 1-1), stating that she had a dating
relationship with petitioner, would have undermined her
credibility and proved his actual innocence, if that evidence
had been presented at trial. See id., Pet. and Mem. (E.D. Va.
filed Feb. 4, 2016) (ECF Nos. 1, 2). The Eastern District of
Virginia dismissed Conlan’s § 2241 petition, after finding an
absence of savings clause jurisdiction over the matter. See
Wilson, Order (E.D. Va. Apr. 15, 2016) (ECF No. 6). The Fourth
Circuit affirmed that decision. See 671 F. App’x 222, 2016 WL
7378388, 2016 U.S. App. LEXIS 22672 (4th Cir. Dec. 20, 2016)
(per curiam).
Conlan also filed a post-verdict motion for a new trial in
the Western District of Texas. That court denied the motion.
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See Conlan v. United States, No. A-11-CR-451(1) LY, Order (W.D.
Tex. Aug. 29, 2016) (ECF No. 307) (“August 29 Order”). The
Fifth Circuit dismissed Conlan’s appeal of the August 29 Order,
and Conlan’s petition for writ of certiorari to the Supreme
Court was denied. See United States v. Conlan, 680 F. App’x
339, 340 (5th Cir. 2017) (per curiam), cert. denied, No. 17-
5599, 2017 WL 3574305, 2017 U.S. LEXIS 4940, 86 U.S.L.W. 3156
(U.S. Oct. 2, 2017).
Liberally construed, the § 2241 petition filed in this
court (Doc. No. 1) presents the same claims, relating to JMP’s
2011 affidavit, previously raised in Conlan’s motion for new
trial in his criminal case, and asserted in the § 2241 petition
in Wilson. Conlan has also challenged his conviction here and
in Wilson, on the ground that it was based on JMP’s false
testimony relating to their relationship, and that Count 3 of
the indictment did not allege two or more acts and was
insufficient to charge Conlan with interstate stalking under 18
U.S.C. § 2261A.
In the instant “Motion to Reinstate Action Due to New
Evidence” (Doc. No. 7), Conlan presents a set of documents,
which he asserts constitute new evidence, supporting his actual
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innocence claim. Conlan characterizes those documents as
“Trial Transcripts, Police Reports, Affidavits, phone records,
Administrative Remedy Gr[ie]vances, Internal Prison emails, as
well as the Superseding Indictment.” Doc. No. 7, at 1.
Discussion
I. Savings Clause Jurisdiction
In general, pursuant to 28 U.S.C. § 2255, the court in
which a federal defendant was convicted and sentenced has
exclusive jurisdiction over post-conviction proceedings
challenging the validity of the conviction or sentence. Section
2255(e), known as the “savings clause,” preserves a limited role
for the court in the district of a federal inmate’s
incarceration to consider a § 2241 petition challenging the
validity of the inmate’s detention. See United States v.
Barrett, 178 F.3d 34, 49 (1st Cir. 1999). The savings clause
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) (emphasis added).
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“[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 v. United
States, 536 F.3d 85, 99 (1st Cir. 2008) (citation omitted).
While it has not articulated all of the circumstances under
which a petitioner may access the savings clause, the First
Circuit has noted that “[m]ost courts have required a credible
allegation of actual innocence.” Id.
II. Prior Opportunity for Judicial Rectification
Conlan has not shown that because of the configuration of
section 2255, he lacked a prior opportunity to obtain judicial
review of his claims relating to the sufficiency of the
indictment, JMP’s alleged false testimony, and the 2011
affidavit. He raised claims relating to the 2011 affidavit in a
motion for a new trial in his criminal case and appealed an
adverse ruling on that motion to the Fifth Circuit, and in his
§ 2255 motion, he raised a claim that the same affidavit was
proof of JMP’s perjury along with a claim of ineffective
assistance of counsel, based on trial counsel’s failure to
cross-examine JMP using that same affidavit. See August 29
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Order, slip op. at 1-2 (denying motion for new trial), aff’d,
680 F. App’x 339, 340 (5th Cir. 2017) (per curiam), cert.
denied, No. 17-5599, 2017 WL 3574305, 2017 U.S. LEXIS 4940, 86
U.S.L.W. 3156 (U.S. Oct. 2, 2017); see also Order on § 2255
Motion, 2015 WL 8362905, at *5, 2015 U.S. Dist. LEXIS 163935, at
*14 (W.D. Tex. Dec. 7, 2015) (ECF No. 273), R&R approved, No. A-
11-CR-451(1) LY, Order (W.D. Tex. May 17, 2016) (denial of §
2255 motion) (ECF No. 296). Conlan has not demonstrated that
anything stood in the way of his raising his claims challenging
the sufficiency of the indictment in his 2255 motion. Because
Conlan had a prior opportunity for judicial review of those
claims, he is unable to satisfy the prerequisites for invoking
savings clause jurisdiction as to those claims. Trenkler, 536
F.3d at 99 (petitioner who had “multiple opportunities to
challenge” sentences on “direct and collateral review” did not
satisfy prerequisites for invoking savings clause jurisdiction).
III. Abuse of the Writ
“A § 2241 petition is considered to be abusive if it raises
‘the same legal issue’ addressed and resolved in a prior
filing.” Rich v. Tamez, 489 F. App’x 754, 754 (5th Cir. 2012).
“A district court may raise the abuse-of-the-writ issue sua
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sponte, as long as it gives the petitioner notice and an
opportunity to respond.” Graewe v. Warden Allenwood FCI, 691 F.
App’x 61, 62 n.3 (3d Cir. 2017).
Conlan litigated all of the claims asserted in the § 2241
petition here in Wilson, and obtained a decision from that court
dismissing that petition for lack of savings clause
jurisdiction. Conlan points to no change in the law or new
evidence that could constitute cause and prejudice that might
allow him to relitigate the availability of the savings clause
as to the same claims asserted here and in Wilson. Conlan is
barred from relitigating whether the claims asserted both in
Wilson and here allow the court in the judicial district of
incarceration to exercise savings clause jurisdiction.
Accordingly, Conlan’s claims relating to the sufficiency of the
indictment, the 2011 witness affidavit, and the use of JMP’s
allegedly false testimony are properly dismissed under the abuse
of the writ doctrine.
IV. Actual Innocence
A. Standard
Conlan seeks to proceed in this matter by asserting claims
of actual innocence. Cf. Trenkler, 536 F.3d at 99 (most courts
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assessing whether to exercise savings clause jurisdiction, “have
required a credible allegation of actual innocence”). “[A]ctual
innocence” in this context, “means factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614,
623 (1998). “To be credible, such a claim requires petitioner
to support his allegations of constitutional error with new
reliable evidence -- whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence -- that was not presented at trial.” Schlup v. Delo,
513 U.S. 298, 324 (1995). “To succeed on his actual innocence
claim, [petitioner] ‘must establish that, in light of new
evidence, it is more likely than not that no reasonable juror
would have found [him] guilty beyond a reasonable doubt,’” if
that evidence had been known at the time of the conviction.
Gaskins v. Duval, 640 F.3d 443, 454 (1st Cir. 2011) (citations
omitted); see also McQuiggin v. Perkins, 133 S. Ct. 1924, 1933
(2013).
B. JMP’s Affidavits
Both the Western District of Texas, in denying Conlan’s
motion for a new trial, and the Fifth Circuit, in dismissing
Conlan’s appeal of the order denying his new trial motion,
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specifically found that Conlan’s actual innocence claim based on
the JMP’s 2011 affidavit was frivolous. See August 29 Order,
slip op. at 1 (“Conlan’s motion is frivolous. . . . This
affidavit would have had absolutely no effect on the jury’s
verdict.”), aff’d, 680 F. App’x 339, 340 (5th Cir. 2017)
(Conlan’s actual innocence claim “is thoroughly refuted by the
entire body of trial evidence and is thus so devoid of arguable
merit as to be frivolous”), cert. denied, No. 17-5599, 2017 WL
3574305, 2017 U.S. LEXIS 4940, 86 U.S.L.W. 3156 (U.S. Oct. 2,
2017).
In an effort to differentiate his actual innocence claim
here from those claims litigated and lost in the Western
District of Texas and Fifth Circuit, Conlan has filed a portion
of a state court “Protective Order Affidavit” which he asserts
JMP executed in 2017, in which she describes their relationship
as one in which they “formerly dated.” Doc. No. 7, at 49. That
description of the relationship, however, is entirely consistent
with and cumulative of JMP’s trial testimony, see Doc. No. 7, at
50 (“[w]e dated briefly,” and “then we stopped dating”). As
such, the 2017 affidavit is not “new” evidence, not presented at
trial, Schlup, 513 U.S. at 324, upon which a credible claim of
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actual innocence may be based. Accordingly, Conlan’s actual
innocence claim, based on JMP’s affidavits, does not provide
grounds for this court to exercise savings clause jurisdiction.
C. Alleged False Testimony as to Phone and Car
The remaining evidence cited in support of Conlan’s actual
innocence claim in Document No. 7 consists of: (1) a response to
Griffin’s grievance as to why the Bureau of Prisons blocked his
access to a cell phone number that had belonged to the JMP,
which both JMP and her husband testified at trial had been
changed to put a stop to Conlan’s communications; (2) evidence
that a post-trial search undertaken via a third party website
(“USPhoneBooks”) yielded a result still associating JMP with
that cell phone number; and (3) a 2011 police report that
includes details regarding the husband’s description of his view
of Conlan’s car that is not completely consistent with that
witness’s trial testimony.
It is “well-established” that, in general, impeachment
evidence is inadequate to establish actual innocence. Holt v.
Stirling, No. CV 6:15-4865-TMC, 2017 U.S. Dist. LEXIS 42904, at
*10, 2017 WL 1105064, at *4 (D.S.C. Mar. 24, 2017) (citing cases
including Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (“latter-
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day evidence brought forward to impeach a prosecution witness
will seldom, if ever, make a clear and convincing showing that
no reasonable juror would have believed the heart of [the
witness’s] account of petitioner’s actions”)). Conlan’s claims
rest on his assertion that, had the jury in his criminal case
heard the “new” evidence, the credibility of necessary testimony
in the case would have been undermined. The evidence at issue
could cast doubt on whether JMP changed her cell number, and on
the husband’s testimony regarding seeing Conlan’s car. Such
evidence, however, would not preclude a reasonable juror from
finding Conlan’s guilt as to each element of the interstate
stalking charges at issue,1 and is not the type of new, reliable,
“exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence,” which may establish
factual innocence. Schlup, 513 U.S. at 324. Nothing before
this court suggests that Conlan has a credible claim of actual
innocence that might warrant an exercise of savings clause
1The evidence in Conlan’s case included “copious” records of
emails and phone calls from Conlan to JMP, testimony regarding
the nature of Conlan’s communications and his failure to heed
multiple warnings to stop, and evidence that Conlan drove his
car bearing a gun and a riot stick from his home in Missouri to
where the victim lived in Texas. See United States v. Conlan,
786 F.3d 380, 384, 385 & n.3 (5th Cir. 2015).
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jurisdiction.
Conclusion
For the foregoing reasons, the district judge should
dismiss Conlan’s § 2241 petition (Doc. No. 1) for lack of
subject matter jurisdiction, and should deny Conlan’s request in
Document No. 7 for an Order allowing the § 2241 petition to
proceed. Any objections to this “Report and Recommendation on
Document Nos. 1 & 7” 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 this 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
November 7, 2017
cc: Joshua Conlan, pro se
Seth R. Aframe, Esq.
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