Bouldin v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Chapelle Alphonso Bouldin
v. 	Case No. 19-cv-376-JL
Robert Hazlewood, Warden, FCI-Berlin;
and Hugh Hurwitz, Director, Federal
Bureau of Prisons
REPORT AND RECOMMENDATION
Chapelle Alphonso Bouldin, an inmate at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI-
Berlin”), has petitioned for a writ of habeas corpus (Doc. No.
1) pursuant to 28 U.S.C. § 2241. 	The matter is before this
court for preliminary review to determine whether the petition
is facially valid and may proceed. 	See 28 U.S.C. § 2243; LR
4.3(d)(4)(A); Rule 4 of the Rules Governing Section 2254 Cases
(“§ 2254 Rules”); see also § 2254 Rule 1(b) (§ 2254 Rules may
apply to § 2241 petitions).
Background
In April 2014, Bouldin was charged, by a two-count criminal
information filed in the Eastern District of Virginia, with
possession with intent to distribute heroin, in violation of 21
U.S.C. § 841 (Count I), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 1 of 9

2
U.S.C. § 924(c) (Count II). 	See United States v. Bouldin, No.
4:13-cr-105-MSD-LRL-1 (E.D. Va.) (“Criminal Case”) (ECF No. 11).
On April 3, 2014, Bouldin waived indictment and pleaded guilty
to both counts. 	Apr. 3, 2014 Plea Agt., Criminal Case (ECF No.
15).
At Bouldin’s sentencing hearing, the court noted that a
search of Bouldin’s apartment incident to his May 3, 2013 arrest
revealed a handgun and twenty grams of heroin. 	See Aug. 7, 2014
Sent’g Tr., Criminal Case (ECF No. 35, at 22). 	The court
further noted that while Bouldin was out on bond on the charges
associated with the May 3, 2013 arrest, Bouldin was the target
of law enforcement surveillance for suspected drug dealing. 	See
id. (ECF No. 35, at 23). 	While Bouldin was being watched, he
was involved in a car chase with law enforcement, during which
Bouldin threw a bag out of his car window which was subsequently
found to contain 48.1 grams of heroin. 	See id.
The Presentence Investigation Report (“PSR”) prepared in
Bouldin’s case attributed 529.1 grams of heroin to Bouldin,
based on the 68.1 grams seized by the police, augmented by
additional amounts identified during the probation officer’s
investigation. 	See Oct. 20, 2016 Order, Criminal Case (ECF No.
46, at 14) (citing PSR ¶ 18). 	The court, in the sentencing
hearing, sustained Bouldin’s objection to the PSR’s calculation
of the amount of heroin attributable to Bouldin, as the parties
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 2 of 9

3
had stipulated to an amount not to exceed 400 grams in the plea
agreement. 	See Aug. 7, 2014 Sent’g Tr., Criminal Case (ECF No.
35, at 5); Apr. 3, 2014 Stmt. of Facts, Criminal Case (ECF No.
16, at 2); Apr. 3, 2014 Plea Agmt., Criminal Case (ECF No. 15).
The court sentenced Bouldin to a total of 140 months of
imprisonment on both offenses, consisting of eighty months on
Count I (towards the upper end of the advisory Guidelines range
of seventy to eighty-seven months), and sixty months on Count
II, to be served consecutively. 	See Aug. 7, 2014 Sent’g Tr.,
Criminal Case (ECF No. 35, at 5). 	The sentence hinged on the
court’s reliance on the PSR for finding that Bouldin was
responsible for at least 100 grams of heroin and the court’s
reliance on the parties’ negotiated amount for finding that he
was not responsible for more than 400 grams of heroin.1 	Bouldin
did not appeal his sentence.
1In denying Bouldin’s initial § 2255 motion, the court
stated as follows:
Under the advisory [U.S. Sentencing] Guidelines,
attribution of at least 400 grams but less than 700 grams
of heroin results in a base offense level of 26, while an
attribution of at least 100 grams but less than 400 grams
results in a base offense level of 24. 	By negotiating a
reduction from 529.1 grams of heroin down to “less than
400” grams, defense counsel successfully achieved a
reduction in Petitioner’s base offense level from 26 to 24.
See Oct. 20, 2016 Order, Criminal Case (ECF No. 46, at 14 n.3)
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 3 of 9

4
In his first post-conviction motion in his criminal case,
filed March 23, 2015, Bouldin challenged his sentence under 28
U.S.C. § 2255. 	See Mar. 23, 2015 Mot., Criminal Case (ECF No.
38). 	The court denied that motion. 	See Oct. 20, 2016 Order,
Criminal Case (ECF No. 46). 	Bouldin filed several more post-
conviction motions in his criminal case, each of which the
district court dismissed as an unauthorized second or successive
§ 2255 motion. 	See, e.g., July 11, 2017 Order, Criminal Case
(ECF No. 57). 	The Fourth Circuit affirmed that dismissal. 	See
United States v. Bouldin, 710 F. App’x 128, 128 (4th Cir. 2018).
Discussion
I. 	Savings Clause Jurisdiction
Pursuant to 28 U.S.C. § 2255, the trial court generally has
exclusive jurisdiction over a petitioner’s post-conviction
motions challenging the validity of his conviction or sentence.
Section 2255(e), known as the “savings clause,” preserves a
limited role for the court in the district where a federal
inmate is in prison to consider a § 2241 petition challenging
the validity of his incarceration. 	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
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 4 of 9

5
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). 	Bouldin, an FCI-Berlin inmate, seeks to
invoke this court’s savings clause jurisdiction under § 2255(e).
While the First Circuit has not provided examples of all
circumstances in which savings clause jurisdiction might arise,2
the court has clarified that § 2255’s “adequacy and
effectiveness must be judged ex ante.” 	Trenkler v. United
States, 536 F.3d 85, 99 (1st Cir. 2008). 	“[P]ost-conviction
relief can be termed ‘inadequate’ or ‘ineffective’” for purposes
of invoking the savings clause “only when, in a particular case,
the configuration of section 2255 is such ‘as to deny a
convicted defendant any opportunity for judicial
rectification.’” 	Id. (citation omitted).
Courts have allowed access to the savings clause in only
“rare and exceptional circumstances, such as those in which
strict adherence” to the statutory limits on access to relief
under section 2255 “would result in a ‘complete miscarriage of
justice.’” 	Id. (citation omitted). 	Therefore, this court has
2In Sustache-Rivera v. United States, the First Circuit
noted that savings clause jurisdiction has been found in cases
where petitioners have asserted statutory interpretation claims
previously unavailable to them, after new Supreme Court
precedent has changed the law in the circuit and narrowed the
scope of a criminal statute in a manner that would have rendered
them not guilty of the offense of which they were convicted.
221 F.3d 8, 16 & n.14 (1st Cir. 2000) (citing cases).
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 5 of 9

6
savings clause jurisdiction if the configuration of § 2255 has
effectively denied Bouldin any opportunity for judicial review,
and manifest injustice has resulted. 	Id.
II. 	Guidelines Sentence Claim and Actual Innocence
Bouldin’s claims challenge the validity of his sentence.
Bouldin argues that it was error for the sentencing court to
base the advisory Guidelines sentence calculations upon an
amount of heroin that exceeded the amount found in Bouldin’s
possession when he was arrested. 	Bouldin argues he is
“innocent” of any higher amount as he asserts the government
obtained evidence to support a higher quantity of heroin during
Bouldin’s “proffer session,” and that therefore, the
government’s use of that information to increase Bouldin’s base
offense level violated the plea agreement.
A. 	Guidelines Sentence Claim
Assuming without deciding that Bouldin’s breach of plea
agreement claim has any merit,3 given that the court, in denying
3The plea agreement specifically provides, as follows:
[N]o truthful information that the defendant provides
pursuant to this agreement will be used to enhance the
defendant’s guidelines range . . . . 	Nothing in this plea
agreement, however, restricts the Court’s or Probation
Office’s access to information and records in the
possession of the United States. . . .
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 6 of 9

7
Bouldin’s § 2255 motion, explained that information regarding
the drug quantity attributable to Bouldin came from the PSR and
the Probation Department’s own investigation, this court notes
that Bouldin could have raised the same claim at an earlier
stage of his case. 	Bouldin points to no controlling precedent
in the Fourth Circuit that would have precluded him from
asserting a viable breach of the plea agreement claim at the
time of his conviction, on direct appeal, or when litigating his
initial § 2255 motion. 	It appears that there was authority upon
which he could have based such a claim at those earlier stages
of this case. 	See, e.g., United States v. Zakrzewski, 462 F.
App’x 421, 428 (4th Cir. 2012) (reviewing for plain error
defendant’s claim presented in his direct appeal that government
breached his plea agreement by using information derived from
proffer session to enhance his sentence); United States v.
Embree, 262 F. App’x 499, 504 (4th Cir. 2008) (“If the
Government breaches express or implied terms of the plea
agreement, a violation of due process occurs.”). 	Accordingly,
as to his Guidelines sentence claim, Bouldin has not satisfied
the prerequisite to savings clause jurisdiction that there has
been any pertinent change in the controlling law which makes
presently available to the petitioner a claim that was not
Plea Agt., Criminal Case, ECF No. 15, at 3, 6.
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 7 of 9

8
previously available to him.
B. 	Actual Innocence
For this court to exercise savings clause jurisdiction over
his claims, Bouldin must also show that his circumstances
present a miscarriage of justice. 	In general, in “collateral-
review jurisprudence, the term ‘miscarriage of justice’ means
that the defendant is actually innocent.” 	United States v.
Olano, 507 U.S. 725, 736 (1993); see also Trenkler, 536 F.3d at
99 (“Most courts have required a credible allegation of actual
innocence to access the savings clause.”). 	Actual innocence
means factual innocence, not mere legal insufficiency. 	Bousley
v. United States, 523 U.S. 614, 623 (1998). 	A petitioner
“asserting innocence as a gateway . . . must establish that, in
light of new evidence, ‘it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.’” 	House v. Bell, 547 U.S. 518, 536-37 (2006)
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Bouldin offers no new evidence to show that he was in fact
responsible for a lower drug quantity. 	Bouldin’s argument that
the government breached the plea agreement in order to
demonstrate that a higher amount of heroin was attributable to
Bouldin is a claim attacking the legal sufficiency of the drug
quantity evidence; Bouldin’s claim does not assert that he was
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 8 of 9

9
factually innocent of responsibility for the heroin quantity
attributed to him. 	Bouldin has not offered any evidence to show
he was innocent of the offenses underlying the sentence he
challenges here. 	Furthermore, he does not contend that the
sentence he received exceeded the statutory maximum. 	Bouldin
has thus not demonstrated that there is any manifest injustice
in his case, warranting an exercise of savings clause
jurisdiction. 	Accordingly, Bouldin’s § 2241 petition is
properly dismissed for lack of jurisdiction.
Conclusion
For the foregoing reasons, the district judge should
dismiss Bouldin’s § 2241 petition for lack of 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 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
May 8, 2019
cc: 	Chapelle Alphonso Bouldin, pro se
Case 1:19-cv-00376-JL Document 3 Filed 05/08/19 Page 9 of 9