Thomas v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Thomas
v. 	Civil No. 17-cv-571-PB
Robert Hazelwood, Warden, FCI Berlin
REPORT AND RECOMMENDATION
Robert Thomas, an inmate at the Federal Correctional
Institution in Berlin, New Hampshire, has filed a petition for a
writ of habeas corpus (Doc. No. 1), pursuant to 28 U.S.C.
§ 2241, seeking to challenge the validity of his 2001 criminal
conviction in the Northern District of Illinois. 	See United
States v. Thomas, No. 1:01-cr-00003-9 (N.D. Ill.) (“Criminal
Case”). 	Thomas’s petition is before this court for preliminary
review, to determine whether it is facially valid and may
proceed. 	See 28 U.S.C. § 2243; Rules 1(b) and 4 of the Rules
Governing Section 2254 Cases; LR 4.3(d)(4)(A).
Background
A Northern District of Illinois jury convicted Thomas on
July 10, 2001 of nine counts of possession of heroin with intent
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to distribute. 	See Criminal Case, ECF No. 133. 	On September
14, 2001, Thomas was initially sentenced to a 360-month prison
term. 	See id., ECF No. 243. 	That sentence was later reduced to
324 months. 	See id., ECF No. 486. 	On direct appeal, Thomas
sought to set aside the district court’s drug quantity
calculations, but did not assert any other challenge to the
validity of his conviction; his appeal was denied. 	See United
States v. Sowemimo, 335 F.3d 567, 573-74 (7th Cir. 2003).
Here, Thomas challenges his conviction and sentence on the
basis that he was denied due process when he was forced to wear
an orange prison jumpsuit, rather than civilian clothes, during
jury selection. 	Thomas argues that his appearance in prison
clothes before the jury denied him the presumption of innocence
to which he was then entitled.
On January 30, 2004, after his conviction had been affirmed
by the Seventh Circuit, Thomas filed a motion under 28 U.S.C.
§ 2255 in the Northern District of Illinois, challenging his
conviction and sentence. 	In his § 2255 motion, Thomas raised,
among other issues, the same due process challenge raised here
concerning his appearance before the jury venire in prison
clothing. 	Thomas asserted in that § 2255 motion that he had not
raised the claim in his direct appeal because appellate counsel
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incorrectly advised Thomas that the claim would have to be
raised in a § 2255 motion. 	The court found that Thomas’s due
process claim was procedurally defaulted and that Thomas failed
to meet his burden to demonstrate cause for, or prejudice
resulting from, the default, as his assertions of ineffective
assistance of appellate counsel were conclusory and not
supported by extrinsic evidence. 	See Mar. 10, 2004 Order,
Criminal Case, ECF No. 7, at 2. 	The court found that no
fundamental miscarriage occurred from the denial of a merits
review on Thomas’s prison garb claim, and then dismissed the
claim and declined to issue a certificate of appealability. 	See
id. 	The Seventh Circuit also declined to issue a certificate of
appealability on December 28, 2004. 	See id., ECF No. 25.
Since 2004, Thomas has challenged the validity of his
conviction and sentence numerous times in the Northern District
of Illinois and in the Seventh Circuit, in filings identified by
Thomas, or construed by courts, as § 2255 motions.1 	A number of
those efforts included the claims concerning prison clothing set
forth in the petition before this court.
1On February 23, 2017, the Seventh Circuit issued an Order
discussing the details and extent of Thomas’s § 2255 litigation
in the Northern District of Illinois and the Seventh Circuit.
See Criminal Case, ECF No. 95.
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Discussion
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:
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). 	“[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) (emphasis added). 	A § 2241
petition is available through § 2255(e)’s savings clause only
“in rare and exceptional circumstances,” such as where the
inability to bring a § 2255 motion would result in a “complete
miscarriage of justice.” 	Id. 	“Most courts have required a
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credible allegation of actual innocence to access the savings
clause.” 	Id.
Nothing in Thomas’s petition provides any basis for the
court to find that § 2255 “is inadequate or ineffective” to test
the validity of his conviction and sentence. 	To the contrary,
Thomas raised the issues presented here in a § 2255 motion in
the sentencing court, and received a ruling on the claims. 	The
denial of Thomas’s prison clothing claim in his original § 2255
motion based on procedural default does not render a § 2255
motion itself inadequate or ineffective. 	See Zelaya v. Sec’y,
Fla. Dep’t of Corrs., 798 F.3d 1360, 1370 (11th Cir. 2015).
Thomas has not asserted a meritorious basis to find that
§ 2255 is an inadequate or ineffective means of evaluating his
claims. 	Further, Thomas’s assertion of innocence is entirely
conclusory and is not sufficient to demonstrate that the
inability to assert his claim in this action would be a
miscarriage of justice. 	Accordingly, there is no savings clause
jurisdiction over Thomas’s claims, and the district judge should
dismiss this petition for lack of subject matter jurisdiction,
without prejudice to Thomas’s ability to seek appropriate relief
in a court of competent jurisdiction.
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Conclusion
For the foregoing reasons, the district judge should
dismiss this action in its entirety, for lack of subject matter
jurisdiction. 	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).
_____________________________
Andrea K. Johnstone
United States Magistrate Judge
May 7, 2018
cc: 	Robert Thomas, pro se
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