Crawley v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Terence Crawley
v. 	Case No. 22-cv-58-SM
Warden, FCI Berlin
Report and Recommendation
Terrence Crawley, who is proceeding pro se and is
incarcerated at FCI Berlin, filed a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his
sentence as a career offender. Crawley contends that this court
has jurisdiction to consider his petition pursuant to the
savings clause, 28 U.S.C. § 2255(e). The Warden moves to dismiss
on the ground that jurisdiction is lacking because § 2255(e)
does not apply in this case.
Standard of Review
Generally, petitions under § 2241 are limited to challenges
to the execution of the petitioner’s sentence and cannot be used
to challenge the validity of his sentence. United States v.
Barrett, 178 F.3d 34, 43 (1st Cir. 1999); Dinkins v. Boncher,
21-cv-11847-AK, 2022 WL 3021108, at *2 (D. Mass. July 29, 2022).
An exception is provided by the savings clause, § 2255(e), that
allows a petitioner to challenge the validity of his sentence
under § 2241 when the remedies provided by § 2255 are
“inadequate or ineffective." Barrett, 178 F.3d at 50 (quoting §
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2255(e)). The savings clause exception, however, is reserved for
cases where a failure to consider the petition because of the
statutory restrictions would cause a “complete miscarriage of
justice.” Trenkler v. United States, 536 F.3d 85, 99 (1st Cir.
2008).
Because it is reserved for exceptional circumstances, the
savings clause does not apply merely because the petitioner is
unable to file a second or successive petition under § 2255. Id.
at 98-99. The savings clause may apply when the Supreme Court
has issued a decision that announces a new interpretation of a
statute, overturning existing precedent, so that the petitioner
is no longer guilty of the crime of conviction. Sustache-Rivera
v. United States, 221 F.3d 8, 16 (1st Cir. 2000). Another
exceptional circumstance that would invoke the savings clause
occurs when the petitioner can prove that he is actually
innocent of the crime of conviction based on newly discovered
evidence. Trenkler, 536 F.3d at 99.
Background
In 2011, Terence Crawley pled guilty to brandishing weapons
and robbing a bank in Tennessee. United States v. Crawley, 526
F. App’x 551, 553 (6th Cir. 2013). He alleges that his prior
convictions for carjacking and first degree assault were used as
predicate offenses, crimes of violence, to support an enhanced
sentence as a career offender under the United States Sentencing
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Guidelines, § 4B1.1(b).1 Doc. no. 1, at 2. Crawley was sentenced
as a career offender to 272 months in prison. Crawley, 526 F.
App’x at 556. His conviction and sentence were affirmed on
appeal. Id. at 559.
Crawley filed a petition under § 2255 to vacate or correct
his sentence on the ground that he no longer qualified as a
career offender in light of the holding in Johnson v. United
States, 576 U.S. 591 (2015).2 The court granted the government’s
motion to dismiss based on Beckles v. United States, 137 S. Ct.
886 (2017), which held that the statutory vagueness challenge in
Johnson did not apply to the career offender guidelines. Crawley
v. United States, 16-cv-150 (E.D. Tenn. Jan. 17, 2019). The
petition was dismissed with prejudice.
Several months later Crawley, then proceeding pro se, moved
for reconsideration of his petition, which was denied. Crawley
1 In his § 2255 petition, United States v. Crawley, 10-cr-
05-TRM-SKL-2 (E.D. Tenn. May 23, 2016) (motion to vacate
sentence, refiled in Crawley v. United States, 16-cv-150-TRM-SKL
(E.D. Tenn. May 23, 2016), Crawley represented that the first
degree assault conviction was in 2002 in New York and that the
carjacking conviction was in 2002 in Maryland. In his § 2241
petition here, however, he states that both convictions were in
Maryland. Doc. no. 1, at 2. For purposes of this report and
recommendation, the jurisdictions of the convictions are not
material.
2 At the outset, Crawley was represented by the Assistant
Federal Public Defender, not counsel who represented him at
trial and on direct appeal. The Johnson issue raised in the
petition is different from the issue raised here.
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continued to make filings in that case seeking relief under
Federal Rules of Civil Procedure 54 and 60, among other things.
Crawley then filed a motion in the Sixth Circuit Court of
Appeals to file a second or successive § 2255 petition which was
denied. Id. (E.D. Tenn. Nov. 1, 2022). Crawley filed the § 2241
petition in this court while the proceedings before the Sixth
Circuit were pending.
Discussion
In his § 2241 petition, Crawley asserts that he has not had
a “reasonable opportunity” to present claims under § 2255 to
challenge his career offender sentence and seeks to proceed
under the savings clause, § 2255(e).3 He contends that he was
wrongly sentenced as a career offender because the predicate
offenses do not qualify him for that status and he is actually
innocent of being a career offender. The government moves to
dismiss the petition for lack of jurisdiction.
A. New Supreme Court Statutory Interpretation
Crawley does not raise a new statutory interpretation by
the Supreme Court that overturned precedent with the result that
he is no longer guilty of the crime of conviction. Instead,
3 The correct standard is whether the remedies under § 2255
are “inadequate or ineffective.” § 2255(e). Crawley took the
“reasonable opportunity” language from Barrett, 178 F.3d at 51,
where the court was summarizing a Seventh Circuit case stating
the function of § 2255, not the standard for § 2255(e).
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Crawley cites Borden v. United States, 141 S. Ct. 1817 (2021),
to show that the Supreme Court ruled, as had been held
previously by the Sixth Circuit in United States v. McMurray,
653 F.3d 367, 375 (6th Cir. 2011), that a predicate offense
under the Armed Career Criminal Act requires more than reckless
conduct. Crawley argues that under McMurray and now Borden his
career offender sentence is illegal because the predicate
offenses could be based on reckless conduct. He contends that he
did not have a reasonable opportunity to raise that issue
because his counsel did not challenge his sentence on that basis
on appeal.
As such, Crawley cites Borden to show that his career
offender sentence was illegal when it was imposed and continues
to be illegal now. He does not claim or show a change in the law
that would support jurisdiction under § 2255(e).
B. Actual Innocence
Crawley also contends that § 2255(e) jurisdiction exists
because he is actually innocent of being a career offender,
based on Borden and McMurray. The First Circuit has not
addressed the issue of whether a claim of actual innocence
pertains to sentencing for purposes of the savings clause, §
2255(e), but district courts in the First Circuit, including
this court, have not allowed that theory to satisfy the savings
clause. See, e.g., Eccleston v. Spaulding, 546 F. Supp.3d 82, 89
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(D. Mass. 2021); Bailey v. Warden, No. 20-cv-540-JL, 2020 WL
5898790, at *4 (D.N.H. Sept. 21, 2020). Other circuit courts,
however, have come to different conclusions. Jones v. Hendrix, 4
F.4th 683, 686-87 (8th Cir. 2021) (cert. granted Jones v.
Hendrix, 142 S. Ct. 2706 (May 16, 2022); see also, e.g.; Allen
v. Ives, 950 F.3d 1184, 1190-91 (9th Cir. 2020); Wright v.
Spaulding, 939 F.3d 695, 705 (6th Cir. 2019); Lester v.
Flournoy, 909 F.3d 708, 712-15 (4th Cir. 2018); McDowell v.
Warden, 694 F. App’x 693, 694-95 (11th Cir. 2017); Kinder v.
Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000).
Courts that have considered claims of actual innocence of
career offender status in sentencing for purposes of the savings
clause require the petitioner to satisfy certain elements, such
as:
(1) at the time of sentencing, settled law of this
circuit or the Supreme Court established the legality
of the sentence; (2) subsequent to the prisoner’s
direct appeal and first § 2255 motion, the
aforementioned settled substantive law changed and was
deemed to apply retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping
provisions of § 2255(h)(2) for second or successive
motions; and (4) due to this retroactive change, the
sentence now presents an error sufficiently grave to
be deemed a fundamental defect.
Chappelle v. Warden, No. 7:21-CV-00197, 2022 WL 1645141, at *7
(W.D. Va. May 24, 2022) (citing Lester, 909 F.3d at 712; United
States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018)); see also
Jean v. Ciolli, No. 21 C 50020, 2022 WL 17718357, at *4 (N.D.
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Ill. Dec. 15, 2022) (applying Seventh and Eleventh Circuit
standards); Kipp v. Rardin, No. CV2000167TUCRMJR, 2022 WL
14963883, at *4–5 (D. Ariz. Sept. 28, 2022), report and
recommendation adopted, No. CV-20-00167-TUC-RM, 2022 WL 14813732
(D. Ariz. Oct. 26, 2022) (applying Ninth Circuit standard). The
standards used require the petitioner to show that the claim is
based on a change in the law since sentencing that renders the
petitioner’s sentence erroneous under the new legal standard.
See Allen, 950 F.3d at 1191; Wheeler, 886 F.3d at 429; Jean,
2022 WL 17718357, at *3. Because of the circuit split, the
Supreme Court has granted certiorari on the issue. Jones v.
Hendrix, 142 S. Ct. 2706 (May 16, 2022).
Even if the court were to follow the law from another
circuit that would consider a savings clause claim in this
context, Crawley has not shown that the circumstances here would
support jurisdiction. As Crawley states, the law in the Sixth
Circuit when he was sentenced was that the mens rea of a
predicate offense for career offender status must be more than
recklessness. See McMurray, 653 F.3d at 374-75. He also agrees
that the Supreme Court’s decision in Borden affirmed the holding
in McMurray and, therefore, did not change the statutory
interpretation that existed at the time of his sentencing. See
Borden, 141 S. Ct. at 1825. As a result, Crawley cannot show
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that § 2255 was “inadequate or ineffective” to challenge his
sentence. Wright, 939 F.3d at 706.
Therefore, Crawley has not shown that jurisdiction exists
under § 2255(e) to challenge his career offender sentence.
C. Other Grounds for Jurisdiction under § 2255(e)
Crawley argues that he lacks a reasonable opportunity to
raise his sentencing claim under § 2255 based on Sixth Circuit
precedent, Hueso v. Barnhart, 948 F.3d 324 (6th Cir. 2020),
which bars him from bringing a second or successive petition
because the holding in Bolden is not a new constitutional
ruling. As is discussed above, Bolden did not provide a new rule
for Crawley’s sentencing because the holding in McMurray also
precluded use of predicate convictions based on a mens rea of
recklessness. Therefore, his theory does not support § 2241(e)
jurisdiction.
To the extent that Crawley argues he was unable to raise an
ineffective assistance of counsel claim under § 2255, he is
mistaken. Claims for ineffective assistance of counsel may be
raised in a § 2255 petition. Massaro v. United States, 538 U.S.
500, 509 (2003). Crawley’s failure to do so does not show that §
2255 was ineffective or inadequate to raise that claim as is
necessary for jurisdiction under § 2255(e). See, e.g., Trenkler,
536 F.3d at 98-99; Copeland v. Hemingway, 36 F. App’x 793, 795
(6th Cir. 2002); Ochoa v. Entzel, No. 18-cv-16, 2020 WL 8484736,
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at *5 (N.D. W.Va. Aug. 17, 2020); Seawood v. Terris, No. 2:17-
cv-12367, 2018 WL 11025543, at *2 (E.D. Mich. May 30, 2018).
Crawley also challenges the validity of his underlying
conviction for carjacking and argues that the carjacking
conviction should not have been considered a predicate offense
for purposes of career offender status. Crawley cannot attack
the validity of a predicate state-court conviction, used to
enhance his sentence, at sentencing or in a collateral
proceeding after judgment. Daniels v. United States, 532 U.S.
374, 382-83 (2001). Therefore, Crawley’s claims challenging the
carjacking conviction are not cognizable here.
Because Crawley raises no grounds to support jurisdiction
under the savings clause, § 2255(e), his habeas petition should
be dismissed.
Conclusion
For the for going reasons, the district court should grant
the warden’s motion to dismiss (document no. 9).
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. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
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554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any 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 17, 2023
cc: 	Terence Crawley, pro se
Seth R. Aframe, AUSA
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