Concepcion v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Alberto Concepcion
v. 	Case No. 18-cv-900-LM
Robert Hazlewood, Warden,
Federal Correctional Institution,
Berlin, New Hampshire
REPORT AND RECOMMENDATION
Alberto Concepcion, an inmate at the Federal Correctional
Institution, Berlin, New Hampshire (“FCI Berlin”), has filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2241,
challenging the validity of his current sentence, imposed
pursuant to a federal prosecution in the District of New Jersey.
See United States v. Concepcion, No. 2:99-cr-00753-SDW-1
(D.N.J.) (“Concepcion I”). 	Concepcion’s petition (Doc. No. 1),
including the supplemental memorandum (Doc. No. 9) that the
court has deemed to be an addendum to the petition, is before
this court for preliminary review, to determine whether
Concepcion’s claims are facially valid and may proceed.1 	See
Rule 4 of the Rules Governing Section 2254 Cases (Ҥ 2254
Rules”); § 2254 Rule 1(b) (authorizing court to apply § 2254
1The court has granted Concepcion’s motion for leave to file
a supplemental memorandum in support of his petition (Doc. No.
9), in part, to the extent that Doc. No. 9 is deemed to be an
addendum to the petition (Doc. No. 1). 	See Jan. 3, 2019 Order.
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Rules to § 2241 petitions); LR 4.3(d)(4)(A). 	Also before the
court is Concepcion’s motion for release on bail (Doc. No. 6)
pending disposition of his section 2241 petition.
Background
On March 16, 2000, Concepcion pleaded guilty to one count
of conspiring to distribute more than 100 grams of heroin. 	See
Concepcion I, ECF No. 52. 	His June 2000 motion to withdraw that
plea was denied, and he was sentenced on July 7, 2000 to 325
months imprisonment. 	See Concepcion I, ECF Nos. 82, 83. 	The
sentencing court set Concepcion’s sentence in the middle of the
Guidelines range of 292 to 365 months, after determining: that
Concepcion stipulated to a drug distribution offense involving
at least three kilograms but less than ten kilograms of heroin;
that Concepcion had played a managerial/supervisory role in the
distribution operation; and that Concepcion had engaged in the
obstruction of justice. 	See July 7, 2000 Tr., Concepcion I,
filed in Concepcion v. United States, No. 2:02-cv-02301-WGB
(D.N.J., Tr. filed Mar. 27, 2006) (ECF No. 22-4, at 24-26, 29-
31, 35). 	The Third Circuit affirmed Concepcion’s direct appeal
of his conviction and sentence on May 10, 2001. 	See United
States v. Concepcion, 259 F.3d 717 (3d Cir. 2001) (unpublished).
The district court later reduced Concepcion’s sentence to 275
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months, upon granting Concepcion’s pro se motion filed pursuant
to 18 U.S.C. § 3582(c)(2). 	See May 31, 2016 Order, Concepcion
I, ECF No. 136.
Concepcion filed his first motion under 28 U.S.C. § 2255
challenging the validity of his detention in 2002. 	That motion
was denied. 	See Concepcion v. United States, No. 2:02-cv-02301-
WGB (D.N.J. Oct. 17, 2002). 	Concepcion then filed a civil
action against fifty-six governmental employees and officials
involved in his criminal case. 	The federal court in New Jersey
dismissed that civil case as frivolous and malicious, see Apr.
4, 2005 Order, Concepcion v. Resnik, No. 3:04-cv-05177-GEB-TJB
(D.N.J. Apr. 4, 2005), ECF No. 39, and Concepcion was
permanently enjoined “from filing further claims in [the
District of New Jersey] without leave of the Court.” 	Id.
In 2010, Concepcion moved in the District of New Jersey for
leave to file a petition for a writ of habeas corpus under 28
U.S.C. § 2241. 	See Concepcion v. Zickefoose, No. 3:10-cv-04210-
MLC (D.N.J.). 	That court denied Concepcion’s request, see Mar.
4, 2011 Order, id., ECF No. 10, and the Third Circuit affirmed
that denial, upon finding that the claims in Concepcion’s § 2241
petition could have been raised in his direct appeal or in his
first § 2255 motion, see Concepcion v. Zickefoose, 442 F. App’x
622, 623 (3d Cir. 2011) (“Concepcion II”).
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In 2015, Concepcion sought leave in the District of New
Jersey to file a second petition under 28 U.S.C. § 2241,
asserting, among other things, “that his sentence violates the
Apprendi line of cases, that the warrants and complaints against
him are faulty and/or fraudulent, that certain unknown federal
agents conspired against him to trump up the evidence in his
criminal case, [and] that his counsel was constitutionally
ineffective.” 	Concepcion v. Hollingsworth, No. 2:15-cv-07400-
SDW, 2015 U.S. Dist. LEXIS 152031, at *4, 2015 WL 6942433, at *2
(D.N.J. Nov. 9, 2015) (“Concepcion III”) (describing petition,
citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). 	The
Concepcion III court dismissed that § 2241 petition for lack of
jurisdiction, finding it to be a second or successive § 2255
motion for which Concepcion had not obtained prior
authorization. 	See id., 2015 U.S. Dist. LEXIS 152031, at *7,
2015 WL 6942433, at *3. 	The Third Circuit affirmed. 	See
Concepcion v. Warden, 648 F. App’x 160, 161 (3d Cir. 2016)
(“Concepcion IV”).
After Concepcion’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 section
2241 petitions, challenges the validity of Concepcion’s
conviction and sentence. 	Reproducing the substance of arguments
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he made in his prior section 2241 petitions, Concepcion cites
Apprendi and Burrage v. United States, 571 U.S. 204 (2014), in
arguing that he was improperly subjected to a heightened minimum
and maximum sentence range pursuant to 21 U.S.C. § 841(b)(1)(B).
As in both prior petitions, Concepcion argues here that his
sentence resulted from the ineffective assistance of counsel,
that judges made false and fraudulent findings, and that
government agents involved in his prosecution engaged in fraud
and misconduct that affected the length of his sentence and the
validity of his guilty plea. 	He further argues that government
agents withheld a lab report that he contends is new exculpatory
evidence, and he asserts that the permanent injunction imposed
upon him by the District of New Jersey requiring him to obtain
leave of court before filing a civil case is part of a cover-up
of corruption and fraud in his criminal case.
Discussion
I. 	Preliminary Review under § 2254 Rule 4
A. 	Standard
In undertaking § 2254 Rule 4 preliminary review, this court
examines the face of the petition, and any attached exhibits, to
determine whether the petitioner is plainly not entitled to
relief. 	See id.; McFarland v. Scott, 512 U.S. 849, 856 (1994).
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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).
B. 	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 that 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).
“[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
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opportunity for judicial rectification.’” 	Trenkler v. United
States, 536 F.3d 85, 99 (1st Cir. 2008) (citation omitted). 	As
both the Third Circuit and the District of New Jersey have
previously explained to Concepcion,
The § 2255 remedy is only inadequate “where the
petitioner demonstrates that some limitation of scope
or procedure would prevent the petitioner from
receiving adequate adjudication of his or her claims
under § 2255. 	This exception is extremely narrow and
applies only in rare circumstances.”
Concepcion III, 2015 U.S. Dist. LEXIS 152031, at *5-*6, 2015 WL
6942433, at *2 (quoting Concepcion II, 442 F. App’x at 623
(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.” 	Trenkler, 536 F.3d at 99. 	The
savings clause is available for petitioners asserting statutory
claims based on new binding precedent, previously unavailable to
them, that narrows the scope of a criminal statute in a manner
that would have rendered them not guilty of criminal conduct.
See Sustache-Rivera v. United States, 221 F.3d 8, 16 n.14 (1st
Cir. 2000); see also In re Dorsainvil, 119 F.3d 245, 251-52 (3d
Cir. 1997) (savings clause jurisdiction exists in circumstances
where intervening change in the law decriminalized conduct
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underlying petitioner’s conviction, and he had no other
opportunity to pursue his claim).
In this proceeding, Concepcion has not asserted a credible
claim of actual innocence, or a claim of the type allowed under
Dorsainvil and Sustache-Rivera. 	Concepcion’s claim regarding the
permanent injunction limiting his ability to file civil actions
in the District of New Jersey is a civil rights claim, for which
relief is not available in an action under section 2241. 	His
claim regarding the existence of new evidence may be considered
by the Third Circuit as a potential ground for filing a second or
successive petition under 28 U.S.C. § 2255(h). 	His remaining
claims could have been asserted in his direct appeal or in his
first section 2255 motion. 	Concepcion has failed to show that
the configuration of section 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 savings clause jurisdiction over those claims.
C. 	Abuse of the Writ
Essentially all of the claims asserted in the instant
petition, including Concepcion’s claims citing Apprendi and
Burrage, were raised in substance in Concepcion’s prior section
2241 petitions. 	See, e.g., Concepcion III, 2015 U.S. Dist.
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LEXIS 152031, at *4, 2015 WL 6942433, at *2 (describing petition
in that case as including more developed versions of claims that
Concepcion raised in his 2010 petition, including that his
“sentence violates the Apprendi line of cases, that the warrants
and complaints against him are faulty and/or fraudulent, that
certain unknown federal agents conspired against him to trump up
the evidence in his criminal case, [and] that his counsel was
constitutionally ineffective”). 	“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) (citation omitted)). 	Cf.
Graewe v. Warden Allenwood FCI, 691 F. App’x 61, 62 n.3 (3d Cir.
2017) (“A district court may raise the abuse-of-the-writ issue
sua sponte, as long as it gives the petitioner notice and an
opportunity to respond.”). 	The Concepcion III court dismissed
Concepcion’s claims for lack of savings clause jurisdiction, see
id., 2015 U.S. Dist. LEXIS 152031, at *7, 2015 WL 6942433, at
*3, and the Third Circuit affirmed, see Concepcion IV, 648 F.
App’x at 161. 	Concepcion’s attempt to relitigate essentially
the same claims here that he previously unsuccessfully litigated
in the District of New Jersey amounts to an abuse of the writ.
Each of the claims previously litigated and reasserted in this
case is subject to dismissal on that basis.
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II. 	Motion for Bail
Concepcion has filed a motion (Doc. No. 6) seeking release
pending the disposition of his § 2241 petition. 	The federal
courts have inherent power in extraordinary cases to admit a
§ 2241 petitioner to bail as necessary to make the habeas remedy
effective, if there are substantial claims in the petition. 	See
Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). 	Cf. Glynn v.
Donnelly, 470 F.2d 95, 98 (1st Cir. 1972) (“Both in the district
court, and on appeal, in the absence of exceptional
circumstances -- whatever that may include -- the court will not
grant bail prior to the ultimate final decision unless
petitioner presents not merely a clear case on the law, but a
clear, and readily evident, case on the facts.” (citation and
footnote omitted)). 	As this petition should be dismissed for
grounds including abuse of the writ and lack of savings clause
jurisdiction, it contains no substantial claim, and the motion
for bail (Doc. No. 6) should be denied.
Conclusion
For the foregoing reasons, the district judge should: 1)
dismiss Concepcion’s § 2241 petition (Doc. Nos. 1, 9) based on
his abuse of the writ and for lack of savings clause
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jurisdiction, without prejudice to Concepcion’s ability to seek
permission in the Third Circuit to file a successive § 2255
motion in the District of New Jersey, and 2) deny the motion for
bail (Doc. No. 6). 	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
January 9, 2019
cc: 	Alberto Concepcion, pro se
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