Washington v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
George Washington
v. Civil No. 15-cv-445-LM
Warden, Federal Correctional Institution,
Berlin, New Hampshire
REPORT AND RECOMMENDATION
This Report and Recommendation (“R&R”) replaces the May 5,
2016 R&R (Doc. No. 7) (“May 5 R&R”). The court has withdrawn
the May 5 R&R by separate Order issued on this date.
Petitioner George Washington, while incarcerated at the
Federal Correctional Institution in Berlin, New Hampshire, filed
a petition for a writ of habeas corpus (Doc. No. 1), challenging
the validity of his sentence imposed pursuant to a criminal
conviction in the District of Maine. See United States v.
Washington, No. 2:03-cr-00041-DBH-4 (D. Me.) (“Criminal Case”).
The petition is before this court for preliminary review to
determine whether Washington’s claims are 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).
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Standard
In undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition contains sufficient factual
allegations, accepted as true, to state a claim to relief that
appears legally sufficient. See McFarland v. Scott, 512 U.S.
849, 856 (1994). When a habeas petitioner proceeds pro se, the
assertions contained in the petition are construed liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Background
On May 31, 2006, following a remand for resentencing in a
drug conviction case in light of United States v. Booker, 543
U.S. 220 (2005), a federal judge in the District of Maine
sentenced Washington to a prison term of 360 months, the bottom
of the sentencing range for a career offender, under section
4B1.1 of the United States Sentencing Guidelines (“Guidelines”).
See Am. J., Criminal Case (D. Me. May 31, 2006) (ECF No. 229);
see also Criminal Case, 2011 U.S. Dist. LEXIS 138463, *1-*2,
2011 WL 6032931, at *1 (D. Me. Dec. 1, 2011) (ECF No. 347)
(discussing procedural history). A criminal defendant may be
treated as a career offender under the Guidelines, if he “has at
least two prior felony convictions of either a crime of violence
or a controlled substance offense.” U.S.S.G. § 4B1.1.
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Washington had been sentenced as a career offender in 2004
because he had one prior controlled substance conviction, which
he does not dispute, and two prior Massachusetts convictions
that the sentencing court determined met the Guidelines
definition of “crime of violence”: assault and battery (“A&B”)
and “assault and battery with a dangerous weapon” (“ABDW”),
United States v. Washington, 324 F. Supp. 2d 48, 49 (D. Me.
2004) (“ABDW Decision”); see also Criminal Case, Tr. of Sent’g
Hr’g, May 26, 2004, at 19 (ECF No. 183). In the 2006
resentencing proceeding, the court did not revisit the career
offender determinations. See Criminal Case, Tr. of Resent’g
Hr’g, May 31, 2006, at 34 (ECF No. 233). The First Circuit
affirmed the amended sentence. See United States v. Washington,
220 F. App’x 1 (1st Cir. 2007).
On September 8, 2008, Washington filed a motion in the
District of Maine challenging his 2006 sentence under 28 U.S.C.
§ 2255. That court denied the motion. See Washington v. United
States, No. 2:08-cv-00293-DBH, 2009 U.S. Dist. LEXIS 92362, 2009
WL 3152883 (D. Me. Sept. 28, 2009) (ECF No. 23), R&R approved,
No. 2:08-cv-00293-DBH (D. Me. Jan. 6, 2010) (ECF No. 31).
Washington then filed separate applications in 2014 and 2015,
seeking the First Circuit’s permission under 28 U.S.C. § 2255(h)
to file successive § 2255 motions in his criminal case, raising
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the claims he has raised here. The First Circuit denied those
applications. See Washington v. United States, No. 14-1461 (1st
Cir. June 4, 2014); Washington v. United States, No. 15-2316
(1st Cir. July 24, 2017) (“Second 2255(h) Application”).
Washington contends here, as he did in the First Circuit,
that in light of United States v. Johnson, 135 S. Ct. 2551
(2015), and Descamps v. United States, 133 S. Ct. 2276 (2013),
Washington must be resentenced. Washington argues that the
sentencing court erred when it determined that his prior A&B and
ABDW convictions qualified as crimes of violence under the
Guidelines. Washington further contends that his § 2241
petition fits within the scope of this court’s savings clause
jurisdiction, pursuant to 28 U.S.C. § 2255(e).
Discussion
I. Savings Clause
In general, the court in which a federal defendant was
convicted and sentenced has exclusive jurisdiction over motions
challenging the validity of the conviction or sentence, pursuant
to 28 U.S.C. § 2255. Section 2255(e)’s “savings clause”
preserves only a limited role for this court to consider claims
filed by a federal prisoner who was incarcerated within this
district at the time he filed the § 2241 petition:
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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 opportunity for judicial
rectification.’” Trenkler v. United States, 536 F.3d 85, 99
(1st Cir. 2008) (citation omitted).
II. Johnson Claim
Washington’s Johnson claim is based on an argument that his
underlying state offenses cannot qualify as crimes of violence
under U.S.S.G. § 4B1.2(a) because the “residual clause” of that
provision is unconstitutionally vague, and because, in his view,
the offenses cannot satisfy the § 4B1.2(a)(1) “force clause.”
In Johnson, 135 S. Ct. at 2563, the Court held that the so-
called “residual clause” of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B), was void for vagueness and
could not be used to increase the length of a federal sentence.
After Washington filed this petition, the Supreme Court held in
Beckles v. United States, 137 S. Ct. 886, 895 (2017), that “the
advisory Sentencing Guidelines are not subject to a vagueness
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challenge under the Due Process Clause and that § 4B1.2(a)’s
residual clause is not void for vagueness.”
The sentence at issue was imposed under the advisory
Guidelines. Johnson does not apply. See Second 2255(h)
Application, slip op. at 1 (Washington’s Johnson claim is
foreclosed by Beckles). The district judge should dismiss
Washington’s claim for relief under § 2241 on that basis.
III. Descamps Claim
Washington also seeks to invoke this court’s savings clause
jurisdiction by asserting a Descamps claim. In Descamps, the
Supreme Court held that, in determining if a prior conviction
qualifies as a “violent felony” for an ACCA sentence
enhancement, the trial court may only compare the statutory
elements of the underlying offense with the ACCA’s definition of
a “violent felony,” and may not consider the subset of those
elements that actually gave rise to the conviction, unless the
prior conviction took place under a “divisible” statute, one
that sets out the elements of the offense in the alternative.
See Descamps, 133 S. Ct. at 2281-82, 2293. The Court had
previously held that, if the conviction arises under a divisible
statute, the sentencing court may consult a limited set of
documents from the prior conviction (known as Shepard documents)
to determine which of the alternative statutory elements formed
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the basis of the prior conviction, before comparing that crime
of conviction with the violent felony definition. See Descamps,
133 S. Ct. at 2281, 1285; see also Shepard v. United States, 544
U.S. 13, 20, 26 (2005).
Washington’s A&B and ABDW convictions were for violations
of divisible statutes. See United States v. Tavares, 843 F.3d
1, 18 (1st Cir. 2016) (ABDW is divisible); Loman v. United
States, No. 09-CR-30012-MAP, 2017 U.S. Dist. LEXIS 117853, at
*3, 2017 WL 3203695, at *1 (D. Mass. July 27, 2017) (A&B is
divisible). As to the ABDW conviction, the sentencing court
found that the elements of that crime categorically qualified as
a crime of violence. See ABDW Decision, 324 F. Supp. 2d at 49.
That conclusion is consistent with First Circuit precedent. See
United States v. Glover, 558 F.3d 71, 79-80 (1st Cir. 2009)
(ABDW is a crime of violence under residual clause of
§ 4B1.2(a)); accord United States v. Wurie, No. 15-1395, 2017
U.S. App. LEXIS 14576, at *13-*14, 2017 WL 3392673, at *2 (1st
Cir. Aug. 8, 2017). As to the 1996 A&B conviction, the
sentencing court in 2004 determined that Washington was the
defendant in that 1996 prosecution, and that Washington had
conceded, in writing, in 2004, that the materials offered by the
government in the federal prosecution established that the A&B
conviction qualified as a crime of violence. See Criminal Case,
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Tr. Sent’g Hr’g, May 26, 2004, at 19 (ECF No. 183); see also
Def.’s Resp. Mot. Determin. in Advance Sent’g as to Whether
Certain Convictions Are Career Offender Predicates, at 5,
Criminal Case (filed Apr. 7, 2004) (ECF No. 146). Under such
circumstances, Washington cannot assert a viable Descamps claim.
IV. Actual Innocence
Recourse to the savings clause may be had where to do
otherwise would result in a “‘complete miscarriage of justice,’”
such as cases involving a “credible allegation of actual
innocence.” Trenkler, 536 F.3d at 99 (citation omitted).
Without claiming or offering evidence to show that he is
factually innocent of the pertinent A&B, ABDW, and controlled
substance offenses that were counted in assessing Washington’s
career offender status, Washington maintains that he is
nevertheless innocent of being a career offender, based on what
he considers to be the persuasive force of his Johnson and
Descamps claims. Those claims lack merit. Washington has not
demonstrated that a miscarriage of justice has resulted in his
case. Accordingly, the § 2241 petition should be dismissed.
Conclusion
For the reasons stated herein, the district judge should
dismiss the claims in Washington’s § 2241 petition and enter
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judgment for respondent. 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); Fed. R. Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 17, 2017
cc: George Washington, pro se
Seth R. Aframe, Esq.
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