Bostic v. Spaulding

• Decision Date: 01 September 2020
• Docket Number: Civil Action No. 18-cv-12276-IT
• Citation: 483 F.Supp.3d 19
• Parties: James BOSTIC, Petitioner, v. Stephen SPAULDING, Respondent.
• Court: U.S. District Court — District of Massachusetts

483 F.Supp.3d 19

James BOSTIC, Petitioner,

v.Stephen SPAULDING, Respondent.

Civil Action No. 18-cv-12276-IT

United States District Court, D. Massachusetts.

Filed September 1, 2020

ORDER

TALWANI, D.J.

After considering the Magistrate Judge's August 13, 2020, Report and Recommendation [#19], and noting that there has been no objection, the court hereby ACCEPTS and ADOPTS the unopposed Report and Recommendation [#19] for the reasons set forth therein. Respondent Spaulding's Motion to Dismiss Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and § 2255(e) [#16] is ALLOWED and the Petition [#1] is DISMISSED in its entirety.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION TO DISMISS HABEAS PETITION

CABELL, U.S.M.J.

I. INTRODUCTION

Petitioner James Bostic challenges his sentence pursuant to a habeas petition filed under 28 U.S.C. §§ 2255(e) and 2241. Respondent Stephen Spaulding, warden of the Federal Medical Center in Devens, Massachusetts, moves to dismiss on several grounds (D. 16); the petitioner has not opposed the motion. For the reasons explained below, I recommend that the motion to dismiss be allowed and that the habeas petition be dismissed.

II. RELEVANT BACKGROUND

On February 17, 2010, a grand jury in the District of Maryland returned a five-count superseding indictment charging Bostic with conspiracy to possess with intent to distribute one thousand kilograms or more of marijuana and five kilograms or more of cocaine, possession with intent to distribute five kilograms or more of cocaine, and possession of firearms in furtherance of a drug trafficking crime. On June 16, 2010, Bostic pleaded guilty pursuant to a plea agreement to the charge of conspiring to possess with the intent to distribute 5 kilograms or more of cocaine. On November 5, 2010, the district court sentenced Bostic to 210 months of imprisonment and five years of supervised release. United States v. James Bostic , et al., No. 1:09-Cr-00333-WDQ (D. Md.) (D. 110). Bostic did not appeal his conviction or sentence.

On November 2, 2011, however, Bostic filed a petition pursuant to 28 U.S.C. § 2255 in the District of Maryland to vacate, set aside, or correct his sentence, arguing (1) that his defense counsel was ineffective for failing to object to a firearm enhancement, and (2) that the Court lacked jurisdiction and the statute of conviction was unconstitutional. On October 9, 2012, the district court denied the petition in its entirety and declined to issue a certificate of appealability. United States v. James Bostic, et al. , No. 1:09-Cr-00333-WDQ (D. Md.) [ECF Dkts. 165, 166, 240, 241]. Bostic appealed nonetheless but on March 29, 2013 the Fourth Circuit denied a certificate of appealability and dismissed Bostic's appeal. Id. [ECF Dkt. 243, 252].

On September 3, 2013, Bostic filed with the Fourth Circuit a motion pursuant to 28 U.S.C. § 2244 for an order authorizing the district court to consider a second or successive application for relief under 28 U.S.C. §§ 2254 or 2255. On September 16, 2013, the Fourth Circuit denied the motion. In re James Bostic , United States Court of Appeals for the Fourth Circuit, No. 13-355 [ECF Dkt. 2-1, 5].

On October 12, 2016, Bostic moved in the district court to reduce his sentence pursuant to USSG Amendment 782. The government did not object and the district court reduced the sentence from 210 to 168 months. United States v. James Bostic, et al. , No. 1:09-Cr-00333-WDQ (D. Md.) [ECF Dkt. 303-306].

On March 28, 2017, Bostic was indicted for possessing a cell phone while an inmate at a federal correctional institution in the Eastern District of North Carolina. United States v. James Bostic , 5:17-CR-93-H-1 (E.D.N.C.) [ECF Dkt. 1]. Bostic pleaded guilty before a magistrate judge and was sentenced to three months of incarceration to be served consecutive to his sentence on his Maryland case. Bostic appealed to the district court there. Id. [ECF Dkts. 28-30, 32, 34].

On November 8, 2017, and while his appeal in the Eastern District of North Carolina was pending, Bostic, who was at FMC Devens at this point, filed a § 2241 petition in the District of Massachusetts seeking among other things to overturn his conviction and sentence in the Eastern District of North Carolina. The district court ordered that Jeffrey Grondolsky, the then-warden of FMC Devens, be substituted as the sole respondent of the action. Bostic v. Grondolsky , 1:17-CV-12254-MGM (D. Mass.) [ECF Dkt. 1, 6].

On April 12, 2018, the district court in the Eastern District of North Carolina denied Bostic's appeal and affirmed the magistrate judge's order and judgement. Bostic appealed to the Fourth Circuit. United States v. James Bostic , 5:17-CR-93-H-1 (E.D.N.C.) [ECF Dkt. 46, 47]. On October 15, 2018, the district court in Massachusetts entered an order staying Bostic's habeas action here "pending the Fourth Circuit's ruling on Petitioner's direct appeal of his related criminal prosecution and sentence." Bostic v. Grondolsky , 1:17-CV-12254-MGM (D. Mass.) [ECF Dkt. 22]. On December 26, 2018, the Fourth Circuit in an unpublished opinion affirmed the North Carolina district court's judgment. United States v. James Bostic , 5:17-CR-93-H-1 (E.D.N.C.) [ECF Dkt. 52].

Meanwhile, on October 29, 2018, Bostic filed the instant petition. On or about March 19, 2019, Bostic notified both Massachusetts courts by mail that he was to be transferred from FMC Devens to USP Lewisburg, Satellite Camp, located in the Middle District of Pennsylvania. (D. 5); Bostic v. Grondolsky , 1:17-CV-12254-MGM (D. Mass.) [ECF Dkt. 31]. The district court in the other Massachusetts matter ultimately dismissed Bostic's petition without prejudice to refiling in the Middle District of Pennsylvania, and Bostic accordingly refiled the petition there, where it was denied. Bostic v. Grondolsky , 1:17-CV-12254-MGM (D. Mass.) [ECF Dkt. 32, 36, 41]; Bostic v. David J. Ebbert , 3:19-CV-1279-JMM-EBC (M.D. Pa.) [ECF Dkt. 1 at 2, 3, 5, 7, 15].

With respect to the petition presented here, Bostic seeks to be re-sentenced in light of the Supreme Court's decision in Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). He argues that Alleyne compels a finding that his previously imposed sentence, based in part upon a mandatory minimum triggered by drug weight, is no longer supportable, and that Alleyne applies retroactively to cases on collateral review by dint of the Supreme Court's holding in Burrage v. United States , 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). Bostic argues that he is entitled to relief because the sentencing court imposed a sentence above what it would have otherwise imposed because it erroneously found that a statutory mandatory minimum sentence based on drug weight applied to him.

On October 11, 2019, the respondent moved to dismiss the petition. (D. 16). Bostic did not respond. Approximately three months later, on January 6, 2020, the court notified Bostic of his failure and, given his pro se status, sua sponte extended his time to respond to January 24, 2020. The court indicated in so doing that it would treat the motion to dismiss as unopposed if Bostic failed to file a response by the new deadline. (D. 17). Bostic did not acknowledge the court's action and did not submit a response by the new deadline or at any time thereafter.

III. DISCUSSION

1. Legal Standard

A federal prisoner may challenge the validity of his term of incarceration and seek post-conviction relief under 28 U.S.C. § 2255(a) if his "sentence was in excess of the maximum authorized by law ... or is otherwise subject to collateral attack." To merit consideration, the petition must be timely filed in the court in which the petitioner was sentenced. Id. The petition is bound by a one-year period of limitation, running from the date on which the judgment of conviction becomes final or from the date on which a newly asserted constitutional right, made retroactively applicable to cases on collateral review, was recognized by the Supreme Court, whichever is latest.¹ Id. § 2255(f). Second or successive § 2255 petitions require leave to file from the appropriate court of appeals. Id. § 2255(h). When § 2255 is otherwise unavailable, a federal prisoner still may file for a writ of habeas corpus challenging his sentence through the savings clause of § 2255(e) by proceeding under § 2241. A § 2241 petition may be filed in either the jurisdiction where the petitioner was convicted and sentenced or where he is currently imprisoned. 28 U.S.C. § 2241(d). There is no timeliness requirement for filing a petition under § 2241. See id. ; Neverson v. Farquharson , 366 F.3d 32, 40 (1st Cir. 2004). However, relief under § 2241 is unavailable after successive § 2255 petitions unless § 2255 is "inadequate or ineffective to test the legality of detention." United States v. Barrett , 178 F.3d 34, 39 (1st Cir. 1999) (quoting 28 U.S.C. § 2255(e) ). Relief under § 2255 is inadequate or ineffective "when, in a particular case, the configuration of [ § 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) (quoting In re Davenport , 147 F.3d 605, 611 (7th Cir. 1998) ).

Accordingly, the First Circuit has recognized that § 2241 is available via the savings clause of § 2255(e) in two limited circumstances. First, a petitioner generally may resort to the savings clause when he makes a "credible allegation of actual innocence." Trenkler , 536 F.3d at 99. Second, a petitioner may invoke the savings clause when the Supreme Court has reversed the holdings of the circuit courts regarding the meaning of a statute, and the petitioner is no longer guilty of a crime under the Supreme Court's new interpretation. See Sustache-Rivera v. United States , 221 F.3d 8, 16 (1st Cir. 2000). Absent these two circumstances, however, a petitioner cannot rely on the savings clause to raise a claim that otherwise...