Jones v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Antonio Jones
v. Case No. 15-cv-83-PB
Esker L. Tatum, Jr.
REPORT AND RECOMMENDATION
Antonio Jones is currently incarcerated in the Federal
Correctional Institution in Berlin, New Hampshire, serving a
151-month sentence for sex trafficking imposed by the U.S.
District Court for the Eastern District of New York. He
petitions this court for a writ of habeas corpus, pursuant to 28
U.S.C. §§ 2241 & 2255(e). Before this magistrate judge for a
report and recommendation is respondent’s motion to dismiss,
which is unopposed. For the reasons that follow, respondent’s
motion to dismiss should be granted.
Background
Under a plea agreement, Jones was convicted of violating 18
U.S.C. §§ 1591(a)(1) and (2). Those statutes, in turn, make it
a crime to: (1) engage in the sex trafficking of children by
force, fraud, or coercion; or (2) benefit from participating in
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such activity. Jones’s plea agreement includes the following
provision:
The defendant agrees not to file an appeal or
otherwise challenge, by petition pursuant to 28 U.S.C.
§ 2255 or any other provision, the conviction or
sentence in the event that the Court imposes a term of
imprisonment of 168 months or below. This waiver is
binding without regard to the sentencing analysis used
by the court.
Pet. (Doc. No. 1 at 15, 20). The district court sentenced Jones
to 151 months of incarceration.
Jones does not indicate whether he has either: (1) appealed
his conviction or sentence; or (2) petitioned for relief under §
2255. In any event, he contends that his § 2241 petition in
this court is permitted by the so-called savings clause
contained in § 2255(e). In his petition, Jones raises six
grounds for relief. They include: purported errors in
calculating his offense level under the federal sentencing
guidelines (grounds one and three),1 claims that he was denied
1 In ground one, Jones argues that the district court
imposed a two-level increase in his offense level based upon the
use of a computer to communicate with the victim, even though
there was no evidence that he used a computer to communicate
with her. In ground three, he argues that the district court
imposed a two-level increase in his offense level based upon the
exercise of undue influence over the victim, even though the
victim was already an admitted prostitute before he engaged in
conduct with her that violated the sex-trafficking statute. In
petitioner’s view, the fact that the victim was already a
prostitute means that she did not need his influence, undue or
otherwise, to engage in commercial sex acts.
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the effective assistance of counsel due to his attorney’s
failure to object to the district court’s purported errors in
applying the sentencing guidelines (grounds two and four), and
claims that he was denied the effective assistance of counsel
because his attorney advised him to accept a plea agreement that
was based upon a purportedly erroneous guideline calculation
(ground five) and that included a collateral-attack waiver
(grounds five and six).2
Relevant Law
The statutory provision on which Jones relies for his cause
of action provides:
An application for a writ of habeas corpus in
behalf of a prisoner who is authorized to apply for
2 There appears to be some overlap between grounds five and
six. In ground five, Jones contends:
In this case, defense counsel was deficient in
advising Affiant to accept a plea offer which (a)
foreclosed all avenues available to a federal inmate
for correcting any type of potential, unforeseen
errors committed by any party; (b) contained
sentencing enhancements which were inapplicable to
Affiant; (c) where those errors prejudiced Affiant by
increasing Affiant’s exposure to punishment; and (d)
precluded Affiant from obtaining relief [under] 28
U.S.C. § 2255 or any other provision.
Pet. (Doc. No. 1 at 16). In ground six, he asserts: “Affiant
was also denied his Sixth Amendment right to effective counsel
when counsel presented Affiant with and advised Affiant to
accept a plea agreement which contained a ‘collateral attack
waiver’ under an inherent ‘conflict of interest.’” Id. at 20.
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relief by motion pursuant to this section shall not be
entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court
which sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by
motion is inadequate or ineffective to test the
legality of his detention.
28 U.S.C. § 2255(e). While the First Circuit has not had many
opportunities to develop its savings-clause jurisprudence, see
Prieto v. FCI Berlin, No. 14-cv-00514-JL, 2015 WL 6690132, at *2
(D.N.H. Nov. 2, 2015), the Fourth Circuit has recently
explained:
[A] prisoner “may file a habeas petition under § 2241
only if the collateral relief typically available
under § 2255 ‘is inadequate or ineffective to test the
legality of his detention.’” Prousalis v. Moore, 751
F.3d 272, 275 (4th Cir. 2014) (quoting 28 U.S.C. §
2255(e)). If a federal prisoner brings a § 2241
petition that does not fall within the scope of this
“savings clause,” then the district court must dismiss
the “unauthorized habeas motion . . . for lack of
jurisdiction,” Rice v. Rivera, 617 F.3d 802, 807 (4th
Cir. 2010).
United States v. Surratt, 797 F.3d 240, 247 (4th Cir. 2015),
reh’g en banc granted (Dec. 2, 2015).
As for the circumstances under which the relief typically
available under § 2255 may be inadequate or ineffective, the
Surratt court continued:
We decided to award relief [in In re Jones, 226 F.3d
328, 329 (4th Cir. 2000)], deeming § 2255 “inadequate
or ineffective to test the legality of a conviction”
when:
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(1) at the time of conviction, settled law of
this circuit or the Supreme Court established the
legality of the conviction; (2) subsequent to the
prisoner’s direct appeal and first § 2255 motion,
the substantive law changed such that the conduct
of which the prisoner was convicted is deemed not
to be criminal; and (3) the prisoner cannot
satisfy the gatekeeping provisions of § 2255
because the new rule is not one of constitutional
law.
Jones, 226 F.3d at 333–34.
797 F.3d at 247. The court then went on to note that it, along
with six other circuits “give substantial attention to the
actual innocence aspect of Jones when discussing it.” Id.
(citations omitted); see also Sustache-Rivera v. United States,
221 F.3d 8, 16 (1st Cir. 2000) (noting that § 2255(e) “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”) (citations omitted).
Discussion
Respondent argues that this court lacks jurisdiction over
Jones’s petition because Jones is not entitled to the benefit of
the § 2255(e) savings clause. As noted, petitioner has not
objected to respondent’s motion to dismiss. More importantly,
nowhere in his petition does Jones identify any change in the
substantive law that decriminalized the conduct for which he was
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convicted. He raises other issues, but none that would entitle
him to the benefit of the § 2255(e) savings clause. That, in
turn, entitles respondent to dismissal of Jones’s petition, for
lack of jurisdiction.
Conclusion
For the reasons detailed above, respondent’s motion to
dismiss, doc. no. 12, should be granted.
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). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 10, 2015
cc: Antonio Jones, pro se
Seth Aframe, Esq.
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